HARAKCHAND GULABCHAND DHOKA Vs. KASHINATH NARSINGH MARATHE

JUDGEMENT

(1.) Considering the nature of the controversy involved, the petition is taken up for final hearing. I have heard the learned Counsel for the parties. By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the order order dated 7th November 2009 passed by the trial Court.

(2.) The petitioner is the original plaintiff. The petitioner has filed a suit for specific performance of agreement of sale of the suit property. The suit is being contested by the respondent-defendant. After the petitioner adduced evidence, the respondent filed his affidavit in lieu of examination-in-chief. After the affidavit was filed, the petitioner filed an application at Exh. 76 raising an objection to certain portions of the affidavit in lieu of exarnination-in-chief of the respondent on the ground that certain statements therein are required to be deleted. In the said application, the petitioner has set out the alleged objectionable statements in different paragraphs of the affidavit in lieu of examination-in-chief. It was contended that the respondent had made an application for seeking permission to amend the written statement which was rejected by the trial Court and the additional paragraphs which were sought to be introduced by the proposed amendment have been re-produced in the affidavit in lieu of examination-in-chief. The prayer in the said application at Exh. 76 was that the objectionable paragraphs in the affidavit in lieu of examination-in-chief be struck out. The learned trial Judge while rejecting the application relied upon the decision of this Court in case of (Cesar Rego Fernandes and others Vs. Angela Ninette Aliverira Fernandes, 2008 1 BCR 270). The trial Court held that there was no power vesting in the Court to order deletion of certain portions of the affidavit in lieu of examination-in-chief.

(3.) The learned Counsel for the petitioner-plaintiff has invited my attention to the text of the proposed amendment of written statement sought by the respondent by filing an application at Exh. 51 and the order passed on the said application. He pointed out that the order rejecting the said application for amendment of the written statement has been affirmed by this Court. He pointed out that the additional averments which were sought to be added by the amendment find place in the affidavit in lieu of examination-in-chief. He submitted that the decision of this Court in the case of Cesar Rego Fernandes and others (supra) does not deal with the such contingency where the paragraphs which were not permitted to be added to the pleadings have been incorporated in the affidavit in lieu of examination-in-chief. He submitted that it will be unjust to compel the petitioner to cross examine the respondent on the said part of the affidavit in lieu of examination-in-chief. He placed reliance on the decision of the Apex Court in case of (Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., 2004 AIR(SC) 355). He submitted that the Apex Court has held that there are two options available in such contingency. One option is to raise objection to the objectionable statements incorporated in the affidavit and the other option is to cross examine the deponent on the said statements. He submitted that the Apex Court has held that objection in writing can be filed and therefore, the said objection will have to be considered by the trial Court and proper order will have to be passed thereon. He submitted that in effect the application made by the petitioner at Exh. 76 was for raising objection and therefore, the trial Court was duty bound to deal with the said objection. He, therefore, submitted that the order rejecting the application is contrary to the law laid down by the Apex Court.