1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5052/2008 Ratiram Pundlik Khedkar & 3 ors...vs..Sau. Kamlabai Velchand Sangale ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Mr. Palshikar, Advocate for petitioners. Mr. Mohta, Advocate for respondent. CORAM: S. A. BOBDE, J. DATED : 3 rd July, 2009 1. Heard. 2. The petitioners have challenged the order passed by trial Court rejecting the application of petitioners to cancel the affidavit of witness and observing that the validity and objections in the suit would be considered at the time of final hearing of the suit. Learned counsel for the petitioners submits that the affidavit contains statements, which are beyond the pleadings and, therefore, said statements will have to be discarded under Section 136 of the Indian Evidence Act, which reads as follows:- “136:- Judge to decide as to admissibility of evidence.- When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. 2 If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.” 3. Without going into the merits of these contentions, I consider it appropriate in the interest of justice that the petitioners should raise this plea, as has already been stated by the trial Court, at the time of final hearing the suit. Any interference at this stage would unnecessarily hamper the proceedings in the suit. There is no merit in the petition. The same is, therefore, dismissed. However, hearing of the suit is expedited. The writ petition stands disposed of accordingly. No order as to costs. JUDGE kahale