1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5512 OF 2008 Smt.Kashiben Varjivandas Rajput. ..Petitioner. V/s. Vasant Kumar Damodar Rajput & Anr. ..Respondents. Mr.S.W.Kulkarni for petitioner. Mr.C.N.Chavan for Respondent Nos.1 and 2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JULY 28, 2008. DATE : JULY 28, 2008. DATE : JULY 28, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Chavan waives Notice for both the Respondents. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. Although the Petitioner had questioned the correctness of the Judgment and Order dated 12th 2 February, 2008 passed below Exh. 25 by way of R.A. No.59 of 2008 before Small Causes Court, however, Counsel for the Petitioner fairly concedes that remedy of revision was unavailable against the said Order. It is for that reason, contends learned Counsel that although the Order passed by the Revision Court is also adverse to the Petitioner, has not been challenged in the present Writ Petition. Instead, in the present Writ Petition, the Order passed by the trial Court dated 12th February, 2008 below Exh. 25 is challenged on merit. 6. The Defendant took out application for rejecting the affidavit of examination-in-chief filed by the Plaintiffs on 6th December, 2007 on the ground that the affidavit of evidence and list of documents were already filed by the Plaintiffs on 23rd September, 2003. According to the Petitioner/defendant, there is no provision in the CPC as amended, which would enable the Plaintiffs to file additional affidavit of examination-in-chief. For that reason additional affidavit of examination in chief, mistakenly titled as examination-in-chief, filed by the Plaintiffs on 6th December, 2007, has been wrongly taken on record by the trial Court. The same will have to be discarded unless the Plaintiffs 3 were to take out a formal application for adducing such further evidence and the trial Court was to pass a formal order on the said application after giving opportunity to the defendant to raise contentions as may be available to him in that behalf. 7. Indeed, the Court below has observed that the Defendant will get opportunity to cross-examine the Plaintiffs. However, that reason cannot be the basis to ignore the objection taken by the Defendant. The trial Court in the first place will have to address the question as to whether it is permissible in law to produce additional affidavit of examination-in-chief in absence of express provision in the CPC as amended. Indeed, it may be open to the Plaintiffs to contend that such permission can be granted by the Court in exercise of powers under section 151 of the C.P.Code having regard to the peculiar facts of the present case. In that, the defendant had amended his Written Statement, which necessitated amendment of the plaint. According to the Plaintiffs, the evidence produced by way of additional affidavit of examination-in-chief deals with the said amended pleadings. All these aspects will have to be considered by the trial Court in the first instance. 4 8. In the circumstances, this Petition succeeds. The impugned Judgment and Order dated 12th February, 2008 passed by the trial Court, as also the Order dated 1st April, 2008 passed by the revisional Court will have to be set aside. Instead the Application Exh. 25 is restored to the file before the trial Court for being considered afresh on its own merits. 9. The Plaintiffs will be free to file formal application for permission to adduce additional affidavit of examination-in-chief pointing out reasons available to them in that behalf. The trial Court shall consider all aspects of the matter and pass appropriate orders, as may be advised on the respective applications. It is once again made clear that all questions are left open to be considered by the trial Court afresh. 10. Parties to appear before the trial Court on 11th August, 2008. The Plaintiffs may file formal application for necessary reliefs, as may be advised on or before 4th August, 2008. Advance copy whereof be served to the Advocate for the Petitioner/defendant before the trial Court so that both the applications can proceed on the date 5 notified earlier or on some other date, as may be convenient to the trial Court, while ensuring that both the applications filed will be disposed of not later than 30th September, 2008. 11. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)