1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7674 OF 2008 Mr. Suresh Atmaram Kolamkar & Ors. .. Petitioners Vs Mr. Hariprasad Mahadev Nachanolkar. .. Respondent -- Shri P.V. Samant for the Petitioners. Shri B.G. Tangsali for the Respondent. -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 P.C: . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent. Considering the narrow controversy involved in this Writ Petition, the same need not be kept pending. The Petitioners are the original Defendants and the Respondent is the original Plaintiff. The examination-in-chief of the Respondent was recorded and thereafter the cross-examination was commenced on 17th September, 2002. It appears that when the cross-examination was incomplete, the Respondent filed further affidavit in lieu of examination-in- chief on 20th September, 2006. An objection to that was raised by the Petitioners by filing an application at Exhibit -147. By the impugned order dated 20th November, 2007, the said application has been rejected. 2. After having heard the learned counsel appearing for the 2 parties, I find that when the cross-examination of the Respondent was partly recorded, on the oral request made by the Respondent, the Trial Court permitted the Respondent to file further affidavit in lieu of the examination-in-chief. It appears that the Petitioners were not heard before further examination in chief was permitted to be produced. If at the stage when the examination-in-chief was recorded and the cross-examination was in progress, the Respondent was desirous of adducing further evidence, it was for the Respondent to make an application under the appropriate provisions of law. Without there being any such application, further affidavit in lieu of examination-in-chief has been taken on record. The Petitioners are entitled to be heard before the Respondent is permitted to file further affidavit in lieu of examination-in-chief. 3. Therefore, the Petition is disposed of by passing the following order. (a) The document at Exhibit-54 filed by the Respondent shall not be treated as further affidavit in lieu of examination-in-chief of the Respondent. (b) It will be open for the Respondent to make an application before the Trial Court at an appropriate stage for grant of permission to file the said affidavit in lieu of examination-in-chief. If such application is 3 made, after giving an opportunity of being heard to the Petitioners, the Trial Court will pass an appropriate order in accordance with law. (c) All contentions of the parties on merits are expressly kept open. (d) In view of the aforesaid order, the impugned order dated 20th November, 2007 does not survive. (e) The Writ Petition is partly allowed in above terms with no orders as to costs. (A.S.OKA, J) ash