DIPAK MOHAN JOSHI Vs. ANIL RAMDAS WANI

JUDGEMENT

(1.) Rule. Rule returnable forthwith. By consent, heard finally.

(2.) The respondent is the original plaintiff, instituted a suit for eviction of petitioner-tenant on the ground of bonafide need etc. After completion of pleadings, respondent-plaintiff has filed his affidavit of evidence. The petitioner-defendant has filed application at Exh.22 contending therein that instead of presenting list of witnesses, respondent-plaintiff filed his evidence of affidavit below Exh.30 and thereafter the suit is posted for examination in chief and cross examination of the respondent-plaintiff. It has contended that the evidence of affidavit is not filed at appropriate stage and same is required to be returned to the respondent-plaintiff and further suit is to be posted for filing list of witnesses and documents. The petitionerdefendant has also filed an application Exh.27 contending therein that certain facts are mentioned in the affidavit of evidence which are not pleaded by the respondent-plaintiff in the plaint. It is therefore prayed in the said application that the evidence filed by respondentplaintiff be ordered to be struck down and the respondent-plaintiff be directed to file fresh evidence of affidavit. The trial court by order dated 11.9.2015 below Exh.22 and by order dated 4.11.2015 below Exh.27, rejected both the applications. Hence, this writ petition.

(3.) Learned counsel for the petitioner by relying on judgment of this Court in the case of Harakchand Gulabchand Dhoka vs. Kashinath Narsingh Marathe reported in, 2010 6 BCR 379, conceded that approach of the trial court is right to the extent that it cannot order of deletion of objectionable paras. Learned counsel further submits that trial court should have treated the application Exh.27 as objection, required to be decided at the appropriate stage of suit. Learned counsel further submits that the provision of filing of list of witnesses is brought into force in order to have fair trial of the suit and both the parties should get fair opportunity while their case is tried before the court. Learned counsel further submits that since the respondent-petitioner has not filed list of witnesses before the Court, the petitioner-defendant may not be able to cross examine the respondent-plaintiff. Furthermore, the petitioner-defendant cannot be put to surprise by examining the witnesses on the next date of hearing, after evidence of respondent-plaintiff is over.