{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6589 OF 2008 Kailash Ambadas Lad R/o CIDCO, Aurangabad PETITIONER VERSUS Manjusha Ashok Oza R/o House-cum-Shop No.271, Near Bus Stop, Pandharpur Tq & Dist-Aurangabad RESPONDENT ....... Mr.P.N.Sonpethkar, Advocate for the petitioner Mr.GN.G.Kale, Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] DATE : 15th June 2009 ORAL JUDGMENT: 1. By the present writ petition, filed under Article 227 of the Constitution of India, the petitioner, original plaintiff, has challenged the orders passed below Exhibits-57 and 59 in RCS No. 344/2003, by the 13th Joint Civil Judge, Junior Division, Aurangabad. 2. Rule. Considering the fact that a very small point is {2} involved in this petition Rule made returnable forthwith. By the consent of the parties heard finally at the stage of admission. 3. It appears that the plaintiff has filed RCS No.344/2003 in the Court of Civil Judge, Junior Division, Aurangabad for relief of possession. In the said suit, evidence of plaintiff / petitioner was over somewhere in the month of March 2007. It further appears that the defendant has started oral evidence of one Ashok Bhikchand Oza. After his evidence is partly recorded it was stopped and the matter was adjourned On the next date the respondent herein, instead of leading further evidence, started praying for adjournments. In substance, on 12,12,2007, the right of the respondent to lead evidence was forfeited by the trial court. Thereafter, in the month of March 2008, again an application was moved by the respondent to recall the order passed and allow her to lead evidence. It appears that till the end of the day, no evidence was recorded. It further appears that on the same day, vide Exhibits-55 and 56, along with applications, an affidavit of the witness is filed by the respondent to which objection was raised by the petitioner. Learned trial court pleased to pass an order, “other side to say”. However, without calling the petitioner, on 02.04.2008, an order came to be passed below Exhibit-57 and the application filed by the petitioner is rejected. Again, similar application came to be rejected vide order passed below Exhibit-59. 4. Perused the copy of the of the Roznama tendered along {3} with writ petition as well as certified copy of Roznama is shown to me. After going through the same and after perusal of the record, it appears that learned trial judge (Smt.A.S.Nalge) is not following the procedure as contemplated under Order 18 Rule 4 of Civil Procedure Code, after the amendment is introduced to the Civil Procedure Code in the year 2002. After introduction of the amendment, evidence has to be recorded in the trial court as per amended provision i.e. Examination in chief by way of filing affidavit, then witness to be cross examined by other side. Perusal of the record shows that the trial court has lost sight of the amendment introduced to the Civil Procedure Code. It also appears that sometime the party is allowed to lead oral evidence and some time the trial court asks parties to lead evidence by way of affidavit and when objection is raised, the same is rejected on the ground that it is the discretion of the Court. When a procedure is mandated as to how the evidence to be recorded in the trial court then it is expected that the trial judges to follow the same and not to behave as per their own whims and fancies. This practice is required to be deprecated and curbed down. In the premise, the orders passed below Exhibit-57 and 59 are perverse and against the provisions of law and hence require to be quash and set aside. Accordingly, the orders passed below Exhibits-57 and 59 are hereby quashed and set aside. The trial judge is hereby directed to hear these applications on merits and pass appropriate order in accordance with law. The trial judge is further directed / instructed to follow the procedure strictly as provided under the {4} Civil Procedure Code. These directions are to be followed punctually and scrupulously. Rule is thus made absolute on the terms indicated above and the writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp6589-08