1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LETTERS PATENT APPEAL NO.369/2010 IN WRIT PETITION NO.2961 OF 2010 (Shailesh Rameshchandra Bhatia and another vs. Shrikrushna Tukaram Dhote and another) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri A. Deshpande, Advocate for appellants. -------- CORAM : D.B. BHOSALE AND P.B.VARALE, JJ. DATED : JULY 30, 2010 Heard learned Counsel for the appellants. This appeal is directed against the order dated 9/7/2010 passed by the learned Single Judge in Writ Petition No.2961/2010 whereby the writ petition filed by the present appellants has been dismissed. The trial Court had rejected the prayer of the appellants to conduct cross-examination of plaintiff and defendant no.1 observing that application under Order XXXIX Rules 1 and 2 of the 2 Code of Civil Procedure is yet to be decided. The sole contention urged by learned Counsel for the appellants is that an opportunity to cross-examine the plaintiff and defendant no.1 ought to have been granted by the trial Court. There is no dispute that such prayer was made at the stage of hearing of the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. Learned Counsel for the appellants does not dispute that the learned trial Judge has not recorded examination-in- chief of the plaintiff and defendant no.1. The plaintiff and defendant no.1 have filed affidavits in support of the prayer for injunction in the application at Exh.5. Therefore, at this stage there is no question of allowing the appellants to cross-examine the witnesses. As a matter of fact, such prayer cannot be made and entertained while deciding the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. Such applications are always decided only on the basis of affidavits filed by the parties. It is always open to the appellants to file their reply to the affidavits filed by plaintiff and defendant no.1, if they have not filed so far. With 3 these observations, the appeal is dismissed. JUDGE JUDGE khj