1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3104 OF 2010 M/s.Malani Brothers ...Petitioner vs. Shantikumar Dharamsey & Ors. ...Respondents Mr.R.D.Dave i/b M/s.N.N.Vaishnaw & Co. for the petitioner Mr.R.D.Vora for the respondents CORAM :A.S.OKA,J. DATE : APRIL 20, 2010 P.C.: 1 Heard the learned counsel for the parties. To avoid any delay in disposal of the suit, the petition is taken up for final disposal at admission stage. 2 The petitioner is the defendant and the respondents are the plaintiffs. A suit for eviction has been filed by the respondents against the petitioner on various grounds including the ground of carrying out additions and alteration of permanent nature in the suit premises. The cross examination of the witness of the petitioner was recorded on 25 th March 2010. On 29 th March 2010, an application was made by which the petitioner sought permission to examine an Architect. Time of two weeks was sought by the petitioner for that purpose. On the same day, the said application was rejected by the learned Judge by passing the impugned order. The learned Judge observed that the petitioner ought to have secured the presence of his witness on that day as the date was fixed in accordance with convenience of the petitioner. 3 The learned counsel for the petitioner in support of 2 the challenge to the said order dated 29 th March 2010 submitted that only 4 day s time was granted by the learned Judge for securing the presence of his Architect. He submitted that the learned Judge ought to have granted reasonable time. The learned counsel for the respondents opposed the petition by pointing out at at no stage, the petitioner has come out with a case that an Architect is to be examined as a witness. He submitted that without filing an affidavit in lieu of examination-in-chief of the Architect, an attempt was belatedly made by the petitioner to examine the Architect. He submitted that the application has been rightly rejected by the learned trial Judge. 4 I have considered the submissions. The recording of the cross examination of the petitioner s witness was concluded on 25 th March 2010. Immediately on the next date, an application was moved by the petitioner seeking time of two weeks for securing the presence of the Architect who was to be examined as a witness. As one of the ground is of carrying out permanent alteration, the request made by the petitioner ought to have been allowed. The learned Judge could not have denied an opportunity to the petitioner to adduce evidence of the Architect. 5 Hence, the petition must succeed. Hence, I pass the following order : i) The impugned order is set aside. The petitioner is permitted to examine an Architect subject to condition that his affidavit in lieu of examination- in-chief is filed within a period of one week from today. 3 ii)Hearing of the suit is expedited. The learned trial Judge is directed to decide the suit as expeditiously as possible. JUDGE