1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2209 OF 2008 WRIT PETITION NO. 2209 OF 2008 WRIT PETITION NO. 2209 OF 2008 Shri Ratilal Jogibhai Patel ... Petitioner (Org. Plaintiff) Versus Smt. Vijayaben w/o.Murarbhai Patel & Ors. ... Respondents Mr. P.S.Dani,Advocate, for the petitioner. Mr. R.A.Jadhav i/b. Mr. Yatin R.Shah, advocates for respoondent Nos.1,3,4 & 6 & 7. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th November, 2008. DATE: 24th November, 2008. DATE: 24th November, 2008. P.C P.C P.C 1. The petitioner is the original plaintiff in R.A.Decl. Suit No.2439 of 1988 wherein he sought a declaration that he is a tenant in the suit premises. In support of his claim, he had filed an affidavit along 2 with certain documents. However, in the said affidavit, there is no reference to those documents. In view of this, the plaintiff took out Interim Notice No.1089 of 2007 seeking leave to file additional affidavit of evidence along with a list of documents. That Notice was opposed by the defendants. After hearing the parties, the learned trial Court discharged the Notice observing that there is no provision to prove the documents by filing additional affidavit of evidence. Being aggrieved by the dismissal of the Notice, the plaintiff has filed the present petition. 2. Heard the learned Counsel for the parties. 3. The learned Counsel for the respondents opposed the petition. However, Mr. Dani, the learned Counsel for the petitioner contended that the present matter is squarely covered by the observations of a learned Single Judge of this Court in Rajesh Varma vs. Aminex Holdings Rajesh Varma vs. Aminex Holdings Rajesh Varma vs. Aminex Holdings and Investments and Ors. 2008 (3) Mh.L.J.460 and Investments and Ors. 2008 (3) Mh.L.J.460 and Investments and Ors. 2008 (3) Mh.L.J.460 in para 12 which read as follows :- "12. The Counsel for the defendants, would, however, argue that in the examination-in-chief, the plaintiff has made no mention about the fact as to who had signed the 3 said document and whether it was signed in his presence or that he was in a position to identify the signature appearing on the said document. According to the defendants, this evidence ought to have come in the affidavit in lieu of examination-in-chief as is required to be filed in terms of Order XVIII Rule 4 of the Civil Procedure Code. It was argued that although the plaintiff later on entered the witness box and his further examination-in-chief has been recorded by the Court, in which all necessary details are mentioned in relation to the suit Bill of Exchange, that evidence cannot be looked into. This argument deserves to be merely stated to be rejected. There is nothing in the amended Civil Procedure Code which precludes the Court from recording further examination-in-chief of the plaintiff. In the present case, recording of further examination-in-chief of the plaintiff was necessitated as the defendants admitted all documents relied by the plaintiffs, except the suit Bill of Exchange. For that reason, the plaintiff, upon entering the witness box, was first examined for the purpose of further examination-in-chief. He 4 deposed about the details in relation to the execution of said document, whereafter the document was taken on record and marked as Exhibit P-9. Ideally, the plaintiff could have spoken about such details in the affidavit filed in lieu of examination-in-chief itself. However, failure to mention those details in the affidavit does not preclude the plaintiff to enter the witness box to depose further; nor does it preclude the Court from permitting the plaintiff to lead further evidence of examination-in-chief before the Court in addition to the affidavit in lieu of examination-in-chief already placed on record, filed in terms of Order XVIII, Rule 4 of Civil Procedure Code. All that the Court ought to ensure is that the defendants get fair opportunity to cross-examine the plaintiff on matters deposed by him in the further examination-in-chief." I am in respectful agreement with the above observations and I find that there was no difficulty nor there was legal bar in filing the additional affidavit of evidence, particularly when in the earlier affidavit the plaintiff had failed to make a reference of the 5 documents which were, in fact, filed along with the affidavit. Therefore, in my opinion, the Petition deserves to be allowed. 4. In the result, the Petition is allowed. The impugned order is hereby set aside. The Interim Notice No.1089 of 2007 is allowed and the plaintiff-petitioner is permitted to file additional affidavit along with documents. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)