1 wp3280.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3280 OF 2011 Suresh s/o Hazarimal Doshi, Age: 50 years, Occ: Business, R/o. Plot No. 30, Wakharkarnagar Dhule, Tq. & Dist. Dhule. ...PETITIONER VERSUS Smt. Mandaben w/o Ramchandra Shah, Age: 67 years, Occ: Household, R/o. City Survey No. 1684/B, Gali No.4, Dhule, Tq. & Dist. Dhule and others. ...RESPONDENTS ... Mr. K.C. Sant, Advocate for petitioner. Mr. G.K. Thigle, Advocate for respondent No.5. ... CORAM: S.S. SHINDE, J. DATE : 28TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel for the petitioner. 2. Learned Counsel appearing for the petitioner submits that, examination in chief of original plaintiff i.e. petitioner herein has been completed on 05-10-2010. According to the Counsel for the petitioner i.e. original plaintiff, 2 wp3280.11 impugned order does not disclose any reason why defendant Nos. 4 and 5 are allowed to contest and cross examine defendant No.2 except said observation that, respondent Nos. 4 and 5 have filed separate written statement. Learned Counsel also invited my attention to the cross examination of defendant No.2 and contended that, the interest of defendant No.2 and defendant Nos. 4 and 5 is one and the same. The power of attorney was given to defendant No. 2 on 04-07-1996. Therefore, merely because the separate written statement is filed by original defendant Nos. 4 and 5, no ground to allow the application of the defendant Nos. 4 and 5 to cross examine the defendant No.2. Learned Counsel submits that, prayer in the counter claim by defendant Nos. 4 and 5 are against the plaintiff and it is bound to affect the interest of the plaintiff. Learned Counsel further submits that, that part of the evidence by which defendant No.2 was cross examined by defendant Nos.4 and 5, may not be taken into account. Learned Counsel also invited my 3 wp3280.11 attention to the provisions of Section 137 and 138 of the Evidence Act and relying upon the judgment of Allahabad High Court in the case of Smt. Annapurna Devi vs. Administrator General, reported in 2009 LawSuit(ALL) 81 and submitted that, the interest of defendant No.2 and defendant Nos. 4 and 5 is one and the same and the interest of respondent Nos. 4 and 5 is not adverse to defendant No.2. On the contrary, power of attorney is executed in favour of defendant No.2 and therefore, the order impugned in this petition allowing to cross examine defendant No.2 by defendant Nos.4 and 5 is contrary to the aforesaid provisions of the Evidence Act. Therefore, according to the Counsel for the petitioner, this petition deserves to be allowed. 3. On the other hand, learned Counsel for the respondents invited my attention to the written statement filed in the Court below and in particular para-4 of the said written statement and submitted that, the stand taken by defendant 4 wp3280.11 Nos. 4 and 5 is totally different than the stand taken by defendant No.2 in the written statement and also counter claim has been filed by defendant Nos. 4 and 5 alongwith written statement. Learned Counsel also submits that, on the alleged date of agreement there was no power of attorney in favour of defendant No.2 by defendant Nos. 4 and 5. Therefore, according to Counsel for the respondents, to entertain this writ petition at this stage when the impugned order is already acted upon, would be a futile exercise and therefore, this Court may not invoke the extraordinary writ jurisdiction. 4. Upon hearing the Counsel for the parties and pursuant to the impugned order, defendant No.2 is already cross examined by defendant Nos. 4 and 5, I am not inclined to entertain this writ petition. Apart from the above,from the perusal of para-4 of the written statement filed by defendant Nos. 4 and 5, it is abundantly clear that, the interest of defendant Nos. 4 and 5 5 wp3280.11 cannot be said to be not adverse to the interest of defendant No.2. Written statement filed by defendant Nos. 4 and 5 takes a different stand in the written statement. Relying upon the judgment of the Bombay High Court in the case of Piroja Ghadiali vs. Pestonji Ghadiali reported in (1946) 48 BOMLR 367, learned Counsel for the petitioner submits that, this Court has taken a view that, if there are identical averments/pleadings in the written statement, in that case it can be said that the parties have adverse interest. However, in the present case, separate written statements are filed by defendant Nos. 4 and 5, stand taken by defendant Nos. 4 and 5 are also different than the stand taken by defendant No.2. This apart as stated above at the cost of repetition, since the impugned order is already acted upon, I am not inclined to entertain this writ petition, same stands rejected. [S.S. SHINDE, J.] sut/NOV11