1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9700 OF 2009 Gurupal Gayadin Gupta .. Petitioner versus Vijay Waman More .. Respondent Mr.A.S.Khandeparkar i/by Khandeparkar & Associates for the petitioner. Mr.S.A.Ghaisas for the respondent. CORAM : A.S.OKA, J. DATE : 4th February 2010. P.C: . On 7th January 2010 notice for final disposal was issued. The petition is filed by the defendant. The petitioner filed an affidavit in lieu of examination in chief on one Mr.Rampalat Verma. The witness did not appear on number of dates and therefore by order dated 30th July 2009, the evidence of the petitioner was closed. An application was made at Exhibit 44 by the petitioner for setting aside the said order dated 30th July 2009 and for seeking permission to lead his own evidence. The learned advocate for respondent-plaintiff endorsed a reply on the said application that “May be allowed subject to heavy costs”. By the impugned order, the said application has been rejected by relying upon provisions of Rule 3 of Order XVIII of the Code of Civil Procedure, 1908. I have heard learned counsel appearing for the parties. The opposition of the learned counsel appearing for the respondent is on the ground that by adopting various methods the petitioner is delaying the trial. 2. It must be stated here that application made by the petitioner was not seriously opposed by the respondent. The prayer in the application was for permitting the petitioner for examining himself as a witness. The trial Court has overlooked 2 discretionary power conferred by Rule 3-A of Order XVIII of the said Code. The application made by the petitioner ought to have been allowed. The learned counsel appearing for the petitioner states that the petitioner proposes to examine only himself and no other witness. It is needless to say that on account of failure of the petitioner to keep Mr.Rampalat Verma present for cross-examination, it will be open for the trial Court to draw adverse inference against the petitioner. Petition must succeed subject to payment of costs quantified at Rs.5,000/-. 3. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 7th August 2009 is quashed and set aside. (b) The application at Exhibit 44 is allowed and the petitioner is permitted to examine himself as a witness. It is made clear that petitioner will not examine any other witness. (c) It will be open for the trial Court to draw adverse inference against the petitioner on account of the failure of the petitioner to keep the witness Mr.Rampalat Verma present for cross-examination. The petitioner shall pay costs of Rs.5,000/- to the respondent within a period of four weeks from today. (d) The petitioner will file his own affidavit-in-lieu of examination-in-chief within a period of six weeks from today and no further time shall be granted to the petitioner. (e) Writ petition is disposed of in above terms. (A.S.OKA,J)