38-WP10476-2026.DOC Santosh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10476 OF 2026 Namdev Shiram Gaikwad Through POA Harshal Namdev Gaikwad ...Petitioner Versus Vijay Ramchandra Gaikwad And Ors …Respondents Mr. Manoj Nayak, a/w Ajay Rathi and Dnyaneshwar, for the Petitioner. Mr. A. S. Rao, for Respondent Nos.1 to 3, 5, 8, 9 and 10. CORAM: N. J. JAMADAR, J. DATED: 25th AUGUST, 2026 Oral Order:- 1. Heard the learned Counsel for the parties. 2. The challenge in this petition is to an order dated 20th July, 2026, whereby an application (Exhibit-86) preferred by the applicant – defendant No.2 to set aside the order dated 16th March, 2026, whereunder the right of defendant No.2 to lead evidence stood forfeited, came to be rejected. 3. It appears that on 19th January, 2026, the plaintiff closed its evidence by filing pursis (Exhibit-78). 4. Mr. Nayak, the learned Counsel for the petitioner – defendant No.2, submitted that, defendant No.2 could not cross- 1/4 SANTOSH SUBHASH KULKARNI Digitally signed by SANTOSH SUBHASH KULKARNI Date: 2026.08.27 18:57:44 +0530 38-WP10476-2026.DOC examine plaintiffs witness as defendant No.2 had filed a transfer application before the learned Principal District Judge, Thane. The affidavit in relation to which defendant No.2 was called upon to cross-examine the plaintiffs witness cannot be termed as the affidavit of evidence in the suit as the said affidavit was filed to determine the correctness of the value of the suit claim. No affidavit of evidence within the contemplation of the provisions of Order XVIII of the Code of Civil Procedure, 1908 (“the Code”) was filed on behalf of the plaintiffs. The learned Counsel for the petitioner further submitted that, even if the said evidence in lieu of examination-in-chief is construed as the affidavit of evidence, the petitioner – defendant No.2 be provided an efficacious opportunity to cross-examine the plaintiffs witness and adduce evidence in defence, lest defendant No.2 would suffer grave prejudice. 5. Mr. Rao, the learned Counsel for the respondents – plaintiffs, countered the submissions on behalf of the petitioner. It was submitted that, defendant No.2 has adopted the dilatory tactics and did not participate in the trial diligently. Thus, the learned Civil Judge was justified in rejecting the application to recall the order dated 16th March, 2026. The jurisdiction 2/4 38-WP10476-2026.DOC exercised by the learned Civil Judge thus does not deserve to be interfered with, in exercise of supervisory jurisdiction. 6. I have perused the material on record. It does not appear that defendant No.2 cross-examined the plaintiffs witness. A dispute was sought to be raised as to the evidentiary value of the affidavit in lieu of examination-in-chief filed on behalf of the plaintiffs witness Atul Gaikwad. Upon perusal of the said affidavit in lieu of examination-in-chief, it appears that the plaintiff professed to file the said affidavit by way of evidence. The plaintiffs would bear the consequences of the said affidavit in lieu of examination-in-chief, if it is treated as the affidavit of evidence. Therefore, the objection on behalf of the petitioner – defendant No.2 on that score does not merit countenance. 7. Since the defendant No.2 was under an impression that the said affidavit did not constitute an affidavit of evidence, and that seems to have led to the filing of various applications before the trial Court, this Court is of the view that it would be expedient in the interest of justice to provide an effective opportunity of hearing to the defendant No.2. The objective of determining the suit on merits can be better advanced by providing such an opportunity to defendant No.2. However, 3/4 38-WP10476-2026.DOC having regard to the conduct of the parties, as borne out by the record, it would be necessary to put defendant No.2 to terms. 8. The petition stands disposed in the following terms: (i) The impugned order declining to recall the order dated 16th March, 2026, forfeiting the right of the defendant to lead evidence, as well as the said order dated 16th March, 2026 stand quashed and set aside. (ii) Defendant No.2 shall cross-examine the plaintiffs witness on 7th September, 2026, positively. (iii) No adjournment shall be granted to defendant No.2 for the purpose of cross-examination of the plaintiffs witness. (iv) After the cross-examination of the plaintiffs witness is over, defendant No.2 shall file the affidavit in lieu of examination-in-chief within a period of two weeks thereafter. (v) The parties shall co-operate with the learned Civil Judge in the expeditious disposal of the suit and shall not seek unnecessary adjournments. (vi) The defendant shall pay costs of Rs.10,000/- to the plaintiffs on or before 7th September, 2026. [N. J. JAMADAR, J.] 4/4