ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7020 OF 2008 PETITION NO. 7020 OF 2008 PETITION NO. 7020 OF 2008 Murzban Nusserwanji Khariwala & Ors. ...Petitioners Vs. Kakad Co-Op.Hsg.Soc.Ltd. & Ors. ...Respondents. Mr.Dhakephalkar, Sr.Counsel, Mr.N.Engineer with Mr.Ashok Purohit i/by M/s. Zohair & Co. for the Petitioners. Ms.Madhuri Gosar for Respondent No.1. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 20th October, 2008. : 20th October, 2008. : 20th October, 2008. P.C. P.C. P.C. . The Petitioners-Original Defendant Nos. 4,5 and 6 have challenged the impugned order passed by the City Civil Court, Dindoshi, Mumbai which is reproduced as under:- "Exh. Exh. Exh. 6 Application Application Application filed by Adv.for Plff. filed by Adv.for Plff. filed by Adv.for Plff. Order Order Order passed passed passed on appln.itself :- on appln.itself :- on appln.itself :- . Heard adv. of plff. No prejudice will cause to defts. They have a right to cross. In fact, the witness is a officer of deft. No.1 who is in possession of certain papers. Appln. allowed. Matter adjd. to 16/09/2008 for R/E." ( 2 ) 2. Admittedly, the Original Plaintiff who is Respondent No.1 not even filed an affidavit of examination-in-chief. The Court has allowed the Application filed by the Plaintiff and by the impugned order permitted the witness who is officer of the Defendant No.1 (Municipal Corporation of Greater Bombay) to be treated as first witness merely because he is in possession of certain papers/ documents and, therefore, the witness of Defendant Nos. 1 is permitted to lead evidence first without opposing by the Plaintiff himself merely because there is right to cross. that cannot be the reason to proceed with the trial in such matter. Unless the plaintiff lead its own evidence or at least file an affidavit to examination-in-chief, if so advised, otherwise, there will be definitely prejudice causes to the other side. The Defendants has a right to cross-examine the Plaintiff, which is always material facet in any trial. Therefore, not putting himself on trial the insistence to have evidence of defence witnesses in such a fashion, in my view, definitely causes prejudice to the other party. 3. Taking all this into account, at this stage and in the interest of justice, the Petition is allowed as ( 3 ) prayed. The Petition is allowed in terms of prayer clauses (a). ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)