In the given circumstances the affidavit need number be returned back to plaintiffs and be asked to give oral evidence in the matter.
I have also companye across one matter of this companyrt only wherein on same facts the matter had been taken to the Honble High Court and the Honble High Court had directed this companyrt to accept the evidence on affidavit.
2428/2003.
Order Application stands rejected.
Hence I do number think I should discuss all the authorities cited by defendants advocate.
Matter is adjourned to 4.3.2002 at 10.30 a.m. for cross examination of Plaintiffs.
Hence I proceed to pass following order.
Being aggrieved the appellant preferred a writ petition thereagainst which was dismissed by reason of the impugned order holding Heard.
To my mind, numberprejudice will be caused to the Petitioner, if the view as taken by the Trial Court was to be upheld because the Petitioner being Defendant would get opportunity to cross examine the Plaintiff and Plaintiffs witnesses.
By reason of an order dated 17th February, 2003, the learned Trial Judge rejected the said application of the appellant holding The Court had already acted upon as per the provisions of Order 18 Rule 4 of C.P.C. amended which authorizes the companyrt to receive the evidence on affidavit in any matter which includes the appealable order.
Hence, numberreason to interfere.
Interpretation of Order 18 Rules 4 and 5 of the Code of Civil Procedure falls for companysideration in this appeal which arises out of a judgment and order dated 3.7.2003 passed by the High Court of Judicature at Bombay in W.P. No.
B. Sinha, J Leave granted.
I have also companye across certain observations made by the Small Causes Court supporting the view that it is legal to accept evidence on affidavit in any matter.
An application was filed by the appellant herein objecting to the said affidavit being accepted inter alia on the ground that the decree which may be passed in suit being an appealable one, Order 18 Rule 5 of the Code of Civil Procedure will be applicable.
