1 W.P. 8076.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8076 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders ................................ CORAM : S.V.GANGAPURWALA, J. DATE : 09/12/2011. Mr. V.P.Latange, Advocate for the petitioner. Mr. Zia-Ul-Mustafa, Advocate for the respondent. .......................... PER COURT : 1. The petitioner assails the order passed by the trial Court rejecting the application of the petitioner to file Written Statement. 2. The present respondent has filed Suit for eviction. The said Suit was decreed. Aggrieved thereby the present petitioner filed Appeal bearing R.C.A. No. 215 of 2006. The said Appeal was allowed and the matter was remanded to the trial Court. The operative part of the order of the said Judgment of the appellate Court reads as under : “ ORDER i) The Appeal is allowed. 2 W.P. 8076.2011 ii) The Judgment and decree passed by the trial Court is set aside. Iii) The Suit is remanded to the Court Civil Judge ( J.D. ), Ahmednagar with a direction that the plaintiff be permitted to adduce evidence in the form of affidavit and to examine herself on oath for affirming the contents of the affidavit with opportunity to defendant to cross examine her on law points and thereafter necessary steps be taken and to decide the issues afresh. iv) Parties shall appear before trial Court on 08/12/2010 ”. 3. The said order was assailed by the present respondent by filing Civil Revision Application No. 8 of 2011 before this Court. This Court confirmed the said Judgment and order. After the matter was remanded, the petitioner who is the original defendant, filed an application for allowing him to file the Written Statement. The said application is rejected. 4. Mr. Latange, the learned counsel for the petitioner submits that in the Appeal that was filed by the present 3 W.P. 8076.2011 petitioner against the Judgment and decree, the petitioner had specifically prayed for remand of the matter and giving opportunity to the petitioner to file Written Statement. The order allowing the Appeal will have to be read in that context. The learned counsel contends that the Suit is for eviction and in such circumstances, the petitioner deserves to be given an opportunity to file the Written Statement. There would be no purpose to remand if the petitioner is not given opportunity to file the Written Statement. 5. Mr. Mustafa, the learned counsel for the respondent supports the order. 6. While remanding the matter back to the trial Court, the appellate Court had given directions to the trial Court. The matter was remanded with direction that the plaintiff be permitted to adduce evidence in the form of affidavit and to examine herself on oath for confirming the contents of the affidavit with liberty to the defendant to cross examine her on law points. It is trite that a party who does not file the Written Statement, is entitled to cross examine on legal points. The said order was also confirmed by this Court in Civil Revision Application. The said order of remand was governed by the provisions of Order XLI Rule 23 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. The trial Court could not have 4 W.P. 8076.2011 exceeded the directions given by the appellate Court. The appellate Court in R.C.A. No. 215 of 2006 and this Court in Civil Revision Application No. 8 of 2011 had observed that simply because the defendant has not filed the Written Statement, that would not be sufficient to hold that the plaintiff has proved her case. Even in absence of Written Statement, the plaintiff is required to prove the case and the right to cross examine has been given to the present petitioner. 7. In the result, no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. 8. The Writ Petition is dismissed. No costs. 9. Needless to state that the petitioner is entitled to assail all those orders if he is required to file Appeal as is permissible U/s 105 of the Code. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 8076.2011