dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.7211 OF 2008 PETITION NO.7211 OF 2008 PETITION NO.7211 OF 2008 Shri Ananda Hariba Jadhav & ors. Petitioners Vs. Shri Chandrakant Ganpati Jadhav & ors. Respondents Mr.Sandeep Kurne i/by Mr.Umesh Mankapure for the Petitioners. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 10th December 2008. : 10th December 2008. : 10th December 2008. P.C. P.C. P.C. The petitioners have challenged the order dated 07.08.2008 (Exhibit 272) in Regular Civil Suit No.38/1994 which is pending before the Civil Judge, Junior Division, Atpadi for trial. The Suit is for partition and separate possession. Defendant No.12 did not file written statement, but later on transposed as plaintiff no.2. The plaintiff-Vishwanath has filed his affidavit in chief and also affidavit in chief of Pitambar Jadhav, who in fact initially was defendant no.2 remained exparte has never filed written statement. The plaintiffs want to lead evidence of said Pitambar Jadhav. The opposition is that such affidavit in chief cannot be treated as an evidence of ex-defendant no.12. The opposition application filed by the petitioners was rejected rightly by the court. The plaintiff is entitled to lead his evidence including of other plaintiffs. The ( 2 ) trial is just begun. It is difficult to accept the contention that the plaintiff, in the facts and circumstances of the case, cannot lead evidence of ex-defendant no.12, who is now transposed as plaintiff no.2 in the matter. There is no bar that the plaintiff cannot file affidavit in chief of the witnesses whose names are not mentioned in the list of witnesses. The Court, if case is made out, permit the parties to lead the evidence of his witnesses. In the present case, at this stage, therefore, I am of the view that there is no reason to disallow such affidavit in examination in chief. The evidence of plaintiff is going on. There is no perversity. The interlocutory order as passed therefore need no interference. Therefore, the writ petition is dismissed by keeping all points open. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)