Bombay High Court
NAMDEV SHIRAM GAIKWAD THROU. POA HARSHAL NAMDEV GAIKWADversusVIJAY RAMCHANDRA GAIKWAD AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The order forfeiting the defendant’s right to lead evidence was quashed and the defendant was ordered to cross‑examine the plaintiff’s witness.
Summary
The petitioner, defendant No.2, challenged an order that had forfeited his right to lead evidence after he failed to cross‑examine the plaintiff’s witness. He argued that the plaintiff’s affidavit filed in lieu of examination‑in‑chief was not an affidavit of evidence under Order XVIII of the CPC, and that he should be given a chance to cross‑examine and present his defence. The respondents contended that the defendant’s dilatory conduct justified the trial court’s refusal to recall the forfeiture order. The High Court examined whether the affidavit qualified as evidence and whether the trial court’s jurisdiction could be interfered with. Finding that the defendant was misled about the nature of the affidavit and that justice required a fair opportunity to be heard, the Court quashed the forfeiture order, directed a specific date for cross‑examination, barred further adjournments, and imposed costs on the defendant.
Issues considered
- Whether the order forfeiting the defendant’s right to lead evidence can be set aside.
- Whether the plaintiff’s affidavit filed in lieu of examination‑in‑chief constitutes an affidavit of evidence under Order XVIII of the CPC.
- Whether the trial court’s exercise of jurisdiction is amenable to supervisory interference.
- Whether the defendant should be granted an opportunity to cross‑examine the plaintiff’s witness despite prior procedural defaults.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XVIII
Subjects
- civil procedure
- evidence
- affidavit of evidence
- right to cross‑examine
- forfeiture of evidence
- supervisory jurisdiction
- expeditious disposal
Judgment
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.
SANTOSH
Mr. A. S. Rao, for Respondent Nos.1 to 3, 5, 8, 9 and 10.
SUBHASH
KULKARNI CORAM: N. J. JAMADAR, J.
Digitally signed by
SANTOSH SUBHASH
DATED: 25th AUGUST, 2026
KULKARNI
Date: 2026.08.27
18:57:44 +0530
Oral Order:-
1. Heard the learned Counsel for the parties.
2. The challenge in this petition is to an order dated 20 th
July, 2026, whereby an application (Exhibit-86) preferred by the
applicant – defendant No.2 to set aside the order dated 16 th
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-
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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
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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,
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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 16 th
March, 2026, forfeiting the right of the defendant to lead
evidence, as well as the said order dated 16 th 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.]
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