(1) WP 8611.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8611 OF 2010 1. Smt. Shardabai w/o Anilprasad Jaiswal Age : 45 years, Occu.: Trade, R/o Mahavir Chowk, Jalna 2. Sunny @ Sheshank S/o Anilprasad Jaiswal Age : 17 years 3. Sweety D/o Anilprasad Jaiswal, Age : 16 years, Petitioners no.2 and 3 are minors under Guardian of their real-mother petitioner no.1 Smt. Shardabai w/o Anilprasad Jaiswal Petitioners VERSUS 1. Amarprasad S/o Anandprasad Jaiswal Age : 45 years, Occu.: Trade R/o Kamal Lodge, Mahavir Chowk, Jalna 2. Ratiram S/o Sitaram Bhagat, Age : Major, Occu.: Trade, R/o Sindhi Bazar, Jalna 3. Shankar S/o Kaluram Khare, Age : Major, Occu.: Trade, R/o Sindhi Bazar, Jalna Respondents ..... Mr. P.R. Katneshwarkar, Advocate for the Petitioners. Mrs.Anjali Dube (Bajpai), Advocate for the Respondents. ..... CORAM : V.R. KINGAONKAR, J. DATED : 5TH JANUARY, 2011 (2) WP 8611.2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 2. The dispute lies in a short compass. The petitioners filed suit for perpetual injunction. The petitioners filed affidavits of four witnesses in support of their case, in lieu of examination in chief, and the said witnesses were cross-examined by the respondents. There was defect, however, in filing of such affidavits due to non-verification of the said affidavits. The defect was not noticed until adverse decision was rendered by the trial Court. The petitioners preferred an Appeal (R.C.A. no.188 of 2008). At the appellate stage, they submitted an application to permit them to remove the defect in the affidavits which had been dislodged by the trial Court due to the technical flaw. The first appellate Court however held that the defect cannot be cured. By the impugned order, the first appellate Court rejected the application filed by the petitioner, holding that the application was moved in (3) WP 8611.2010 the first appellate Court and such defect was not removed at the stage of the trial. 3. Having heard learned Advocates for the parties and on perusal of the impugned order, it is manifestly clear that the first appellate Court failed to consider scope of powers available under Order 41 Rule 33 and Order 41 Rule 27 of the Code of Civil Procedure, 1908. The appeal before the first appellate Court is continuation of the suit and, therefore, whatever powers are available to the trial Court can be usurped by the first appellate Court. The procedural provisions are handmaid and ought to be considered as auxiliary provisions. The rights of the parties cannot be subverted and trampled by using procedural cobwebs. The only defect in the affidavits of the witnesses was that they were not duly verified by the competent authority. That defect was not brought on surface of the record during cross- examination of the witnesses. It would have been sufficient if the witnesses would not have been called before the first appellate Court to verify the affidavits by recording their statements about (4) WP 8611.2010 contents thereof. In "Miscellany Marketiers Pvt. Ltd. Vs. Sun-N-Sand Hotels Pvt. Ltd. 2010(1) Mh.L.J. 396" a Single Bench of this Court held that the defects in the affidavit would stand cured if during course of examination on oath of the witnesses recorded before the Court the affidavit was confronted and the witness had stated that the contents thereof were true and correct. Such a course could have been adopted by the first appellate Court. The impugned order reflects improper consideration of the legal provisions as well as erroneous assumption that the first appellate Court will not be able to cure such defects which had occurred during the proceedings before the trial Court. Needless to say, the impugned order is un- sustainable in the eye of law and suffers from vice of arbitrariness as well as perversity. 4. In the result, the Petition is allowed. The impugned order is set aside. The petitioners' application be deemed as allowed and the defect may be permitted to be cured as observed hereinabove. The petitioners shall pay costs of Rs.3000/- (5) WP 8611.2010 (Rs.Three Thousand) to the respondents in the first appellate Court as condition precedent for allowing the rectification of the defect. 5. Rule made absolute accordingly. Sd/- [V. R. KINGAONKAR, J.] arp