1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6399 OF 2009 Jagdish Devilal Sutar (since deceased) by Smt.Bhagwanti Jagdish Sutar & Ors. .. Petitioners versus Maharashtra Housing & Area Development Authority & Ors. .. Respondents Mr.S.J.Ghogare for the petitioners. Mr.Sagar Gharat h/f Mr.P.G.Lad for MHADA-respondent Nos.1 and 2. Mrs.C.B.Khona for respondent No.3. CORAM : A.S.OKA, J. DATE : 11th September 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the writ petition will be taken up for final disposal. The petitioners are the original plaintiffs and the respondents are the original defendants. The petitioners have filed a suit for declaration that they are the occupiers of the suit premises and are entitled to permanent alternative accommodation in lieu of the suit premises and for a direction to allot the permanent accommodation to them. 2. Initially, the suit was filed only as against 1st and 2nd respondents. 2 Subsequently, the 3rd respondent (3rd defendant) was impleaded as a party. It must be stated here that according to the case of the petitioners, the 1st respondent allotted transit accommodation to them after possession of the suit premises was handed over by them. During the course of cross- examination of the 1st petitioner, an opinion was expressed by the trial Court that 3rd respondent was a necessary and proper party to the suit and therefore, the 3rd respondent was impleaded as a party defendant. 2. According to the case of the petitioners, after they closed their evidence, 1st and 2nd respondents adduced evidence. It is stated that the 3rd respondent did not lead any evidence. The case of the 3rd respondent in her written statement is that her family was in occupation of the suit premises for more than 50 to 60 years. An application was made by the petitioners before the trial Court seeking permission of the trial Court to file further affidavit in lieu of examination-in-chief for bringing on record the documents to falsify the case of the 3rd respondent. It was contended in the said application that as the 3rd respondent did not step into witness box, the petitioners could not get opportunity to cross-examine the 3rd respondent and therefore the application was being made. The said application was rejected by the trial Court by the impugned order. 3. The learned counsel appearing for the petitioner stated that all that the petitioners desire to do is to produce the certificate copies of the extracts of the voters list for the period between 1972 to 2002. He has produced for 3 perusal of this Court on record the certified copies of the documents such as voters certificate and extract of electoral roll which the petitioners desire to produce. He has also produced for perusal of this Court a further affidavit in lieu of evidence of one Jasraj Sutar (constituted attorney of the petitioner No.1(a)). He submitted that the trial Court has committed a gross error by declining to grant permission to lead further evidence. The learned counsel appearing for the 3rd respondent vehemently opposed the petition by pointing out that the witness examine by the petitioners has given categorical admissions regarding possession of the premises by the 3rd respondent. She submitted that there was no burden on the 3rd respondent. She urged that in view of admission of the witness of the petitioners it was not necessary for the 3rd respondent to adduce any evidence. She submitted that the learned trial Judge has rightly rejected the application. 4. I have carefully considered the submissions. It appears that after the cross-examination of the witness examined by the petitioners commenced, the 3rd respondent was added as a party defendant and the 3rd respondent was permitted to file written statement. On the impleadment of the 3rd respondent and on 3rd respondent filing written statement, the petitioners could have always applied before the trial Court for leading further evidence in order to deal with the written statement and defence of the 3rd respondent. The 3rd respondent did not step into witness box. If the 3rd respondent had stepped into witness box, the petitioners could have confronted her with the documents which now they are seeking to produce. The said documents are 4 extracts of the public record relating to electoral roll. The further affidavit in lieu of examination-in-chief which the petitioners propose to file shows that same is only for the purposes of referring to the certified copies of the electoral roll and other related record. 5. Considering the fact that the 3rd respondent was impleaded as a party after the affidavit-in-lieu of examination-in-chief of the witness of the petitioners was filed, the trial Court ought to have given an opportunity to the petitioners to file further affidavit in lieu of examination-in-chief of their witness and to produce the documents. Prejudice, if any, caused to the 3rd respondent could have been compensated by ordering payment of costs. Therefore, the petition must succeed. The amount of costs payable to the 3rd respondent is quantified at Rs.5,000/-. 6. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order dated 26th June 2009 is quashed and set aside and Misc. Application No.42 of 2009 is allowed. (b) It is made clear that the petitioners will be entitled to file further affidavit-in-lieu of evidence of their witness Jasraj Sutar and they will be entitled to file only the certified copies of the extracts of electoral rolls and record relating thereto. 5 (c) The petitioners shall pay costs of Rs.5,000/- to the 3rd respondent within a period of six weeks from today. (d) All contentions of parties on merits are expressly kept open. (e) The writ petition is partly allowed in above terms. (f) It is obvious that the respondents will be entitled to cross- examine the said witness. It is obvious that the respondents will be entitled to lead evidence, if any, for dealing with further evidence permitted to be adduced by the petitioners. (A.S.OKA,J)