1 wp7306.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7306 OF 2010 M/s.India Coffee and Tea Distributing Co.Limited ...Petitioner vs. Gautam Sailendranath Dey ...Respondent Mr.F.E.Devitre, Sr.Counsel with Mr.Jimmy Avasai i/b Federal & Rashmikant for the petitioner Mr.Dinesh Shah for the respondent CORAM :A.S.OKA,J. DATE :DECEMBER 8,2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. On 27th September 2010, notice for final disposal was issued. The petitioner has taken an exception to the order dated 16th February 2010 passed by the learned Judge of the Court of Small Causes. By the said order, the application at Exh.44 has been rejected by the learned Trial Judge. The said order has been confirmed in a revision application preferred before the Appellate Court. 2 The respondent is the original plaintiff and the petitioner is the defendant. A suit for eviction has been filed by the respondent-plaintiff in the Court of Small Causes under the provisions of Maharashtra Rent Act,1999. Trial has commenced. One of the averments in the plaint is that one Benjamin Alexander, the Estate Manager of the petitioner informed the respondent that the petitioner desires to close down the business in the 2 wp7306.sxw suit premises. The petitioner filed an affidavit in lieu of examination-in-chief of his second witness Bengamin Alexander. The said witness is stated to be a former employee of the petitioner. As stated above, the respondent plaintiff is relying upon the alleged statements made by this witness. After filing of affidavit in lieu of examination-in-chief, the cross examination of the said witness has not been recorded. An application was made seeking permission to enable the said witness to file additional affidavit in lieu of examination-in-chief mainly for relying upon the tax deduction certificate issued by his new employer and for relying upon his letter of resignation which was already produced on record. The application for taking the said additional affidavit in lieu of examination-in-chief has been rejected by the impugned order. 3 The learned senior counsel for the petitioner submitted that there was no reason to take such a hyper- technical view especially when the cross examination of the said witness was not commenced. The learned counsel for the respondent submitted that the application was not made by the petitioner but by the witness himself and therefore, the trial Court was justified in not entertaining the said application. 4 After considering the submissions, I find that the approach of the learned trial Judge is erroneous. The cross examination of the second witness examined by the petitioner has admittedly not started. Perusal of the additional affidavit sought to be produced shows that it was basically filed for the purpose of producing the certificate of deduction of tax issued by the alleged new employer of the witness. Other paragraph of the affidavit recites that the resignation letter which is 3 wp7306.sxw placed on record was signed by the said witness and contents thereof were true. The application was made by the witness himself as he desires to record his further evidence for bringing the aforesaid facts on record. As the cross-examination of the said witness had not commenced, the trial Court ought to have permitted the said affidavit to be filed and ought to have treated the same as the further affidavit in lieu of the examination- of-chief of the witness. There will be no prejudice to the respondent as the respondent will get an opportunity to cross examine the witness. 5 Hence, I pass the following order : i) Impugned order dated 16th February 2010 is quashed and set aside. The application at Exh.44 is allowed. ii)The additional affidavit of the witness Mr.Bengamin Alexander shall be taken on record and shall be treated as further or additional affidavit in lieu of examination-in-chief of the witness. iii)Petition is disposed of on above terms with no order as to costs. JUDGE