1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 1215/2011 (AJAYKUMAR B. BADNORE & ANOTHER VERSUS ARUNKUMAR B. BADNORE) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.G. Loney, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 26 , 2011 . By this petition, the petitioners impugn the order passed by the trial Court on 14.12.2010 rejecting an application/objection filed by the petitioners to the application filed by the respondent-plaintiff for filing his Additional Examination on affidavit in view of the framing of the additional issue. The petitioners are the original defendants. A suit was filed by the respondent-plaintiff for declaration, permanent and mandatory injunction. The trial Court framed the issues and the parties tendered evidence. After the evidence was tendered, the trial Court recasted the issues and also framed the additional issue as under: “Whether the suit is bad for non-joinder of necessary parties ?” In view of the framing of an additional issue, the plaintiff, who had already examined himself, tendered an additional examination-in-chief on affidavit. The petitioners- defendants objected to the filing of the additional affidavit by the plaintiff. The trial Court, however, by the impugned order dated 14.12.2010, rejected the objection. 2 It is the case of the petitioners that a witness could be re-examined only with the permission of the Court as provided under the Evidence Act. It is also submitted on behalf of the petitioners that in view of the provisions of Order XVIII Rule 17 of the Code of Civil Procedure, the Court may, at any stage of a suit, recall any witness, who has been examined and put such questions to him as the Court thinks fit but, that would be subject to Law of Evidence. It is canvased on behalf of the petitioners that the tendering of an additional examination-in-chief on affidavit could not have been permitted by the trial Court and the witnesses could not have been recalled. The submission made on behalf of the petitioners is ill-founded. This is not a case of re-examination of the respondent-plaintiff. In fact, the plaintiff tried to tender additional examination-in-chief on affidavit in view of the framing of an additional issue as regards the effect of non- joinder of necessary parties. In view of the framing of the additional issue, the respondent-plaintiff wanted to tender additional evidence in examination-in-chief. The trial Court rightly overruled the objection raised by the petitioners as this was neither a case of recall of the witness as provided under Order XVIII Rule 17 of the Code of Civil Procedure nor was it a case of re-examination of the witness as per the provisions of Section 138 of the Evidence Act. The Court was bound to grant permission to the plaintiff to tender further evidence in examination-in-chief in view of the framing of the additional issue. It is for the petitioners to cross-examine the plaintiff on the additional evidence. The trial Court rightly observed that due to the recasting of the issues, the plaintiff could have filed 3 additional evidence on affidavit and the petitioners- defendants could have cross-examined the plaintiff. Since the additional evidence was tendered on affidavit by the plaintiff- respondent to point out that the suit was not bad for non- joinder of necessary parties, the trial Court rightly rejected the objection. The order appears to be just and proper and calls for no interference in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE APTE