Ndm 1 wp.8970.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8970 OF 2009 Ritika M. Chandnani and anr. ... PETITIONERS Vs. Sarfaraz Munir Ahmed Shamsi and anr. ... RESPONDENTS -------------- Mr. P.S. Dani i/b Mrs. Neela A. Dholakia, Advocate for Petitioners. Mr. Udaipuri i/b Mr. Vinay S. Bhorge, Advocate for Respondent Nos. 1 and 2. -------------- CORAM : MRS. MRIDULA BHATKAR, J. DATE : 05 th November, 2009. P.C. 1 By consent, the petition is decided finally at the stage of admission. 2 The writ petition is filed against the judgment and order dated 09 th September, 2009 passed by the Appellate Court of the Small Causes, at Mumbai. The Petitioners are the original defendants who have been occupying the premises of the Respondents, who is original plaintiffs. The Respondents have filed the suit for eviction against the Ndm 2 wp.8970.09.sxw Petitioners (original defendants) and for the default defence of the Petitioners was struck off by the Court. The suit was decided and decreed on merits. The defendants were given an opportunity to cross- examine the plaintiffs. The Petitioners filed appeal challenging the judgment and decree passed by the Small Causes Court. During the pendency of the appeal, the Respondents have filed another suit RAD No. 459 of 2008 in the Small Causes Court against the original landlord as the Respondents wanted declaration as a tenant from the original landlord. The Respondents in that suit filed R.A.D Suit No. 459 of 2008 have filed an affidavit in which they have taken stand in respect of the relationship status of the present Petitioners as not a licensee, but was conductor of the business in the suit premises. The Petitioners obtained the certified copy of the said affidavit and wanted to rely and produce that affidavit in the Appellate Court. The Appellate Court did not allow the production as the Petitioners wanted to lead the evidence. Challenging that order, the Petitioners filed Writ Petition No. 1488 of 2009. The said Writ Petition was dismissed. However, the Honourable Single Judge has Ndm 3 wp.8970.09.sxw observed as follows: “ It would have been a different matter if the Petitioners were to apply to the Appellate Court for allowing them to further cross-examine the plaintiff’s witness so as to confront them in the light of the subsequent development and in particular the contents of the certified copies of the documents which they intend to produce. ” 3 Thus, in view of these observations, the Petitioners thereafter, filed another application before the Appellate Court seeking permission to further cross-examine the plaintiffs i.e. the Respondents in order to bring the affidavit of the Respondents on record. The said application of the Petitioners was opposed by the Respondents and it was dismissed by the Appellate Authority and being aggrieved with the said order this Writ Petition is preferred. 4 The learned counsel appearing for the Petitioners has submitted that though the defence of the Petitioners i.e. defendants was struck off; right of cross-examination can not be denied. The reliance Ndm 4 wp.8970.09.sxw was placed on the findings in the case of Modula India Vs. Kamakshya Singh Deo (1988) 4 Supreme Court Cases 619. He has further pointed out that the learned Single Judge while passing order on 18 th March, 2009 has also placed reliance on paragraph Nos. 16, 18 and 19 of the said ruling. 5 The learned counsel appearing for the Respondents has submitted that while deciding this writ petition, the Court to take into account the onerous monetary obligation on the Petitioners and delayed tactics adopted by the Petitioners which has deprived of the respondents from the fruits of the decree, which is passed in his favour. The counsel has further submitted that in the application made by the Petitioners before the Appellate Court seeking further permission to cross-examine the Respondents, nothing is explained as to why the Petitioners wanted to cross-examine further and what exactly they wanted to bring on record. He has further pointed out that when an opportunity to cross-examine was given to the Petitioners, no specific stand in respect of the relationship or the status of the Petitioners, whether licensee or not was Ndm 5 wp.8970.09.sxw taken, but the cross-examination is cryptic and aims at nothing. The learned counsel has further submitted that the Appellate Court has considered these aspects and has rightly dismissed the application of the Petitioners. 6 The learned counsel appearing for the Respondents has further submitted that the R.A.D. Suit No. 459 of 2008 is pending and his interlocutory affidavit is pending for final determination and not proved and hence cannot be subjected to cross-examination. 7 The defendants in the suit, whose defence is struck off has right to cross-examine the plaintiffs. It implies the right of further cross- examination subject to showing good reason for doing so. Therefore, said document was not available for the cross-examination before the Petitioners. In the present case, the Respondents have filed the affidavit later in the other suit. Affidavit is a statement on oath by the affiant. The Petitioners – defendants, no doubt cannot himself or herself adduce any active evidence, however, can bring the evidence by using right of the cross-examination and it is settled position of law, that a document can Ndm 6 wp.8970.09.sxw be proved in the cross-examination. A statement made by the affiant is a previous statement and cross-examination on this point is permissible under Section 145 of the Evidence Act. 8 The learned Counsel for the Respondents submits that the Petitioners be directed to pay Rs. 10,000/- per month from the date of the admission of the appeal till date and there is also prior monetary obligation on the Petitioners. The submissions in respect of the monetary obligation on the Petitioners may be correct, however, the Respondents are directed to agitate this point before the Appellate Authority. Both the parties to cooperate and appeal is to be disposed of finally preferably 30 th April, 2010. 9 The order of Appellate Authority is set aside and quashed. 10 Petition Allowed. [ MRS. MRIDULA BHATKAR, J ]