JUDGMENT 1. Heard finally with consent at admission stage. 2. Respondent no.1 has instituted a Special Civil Suit No.172 of 2006 for specific performance of contract and a decree of perpetual injunction or in the alternate for partition and separate possession in respect of the suit property eat no.385 situated at Chikalthana, Tq. and District Aurangabad to the extent of 2 acres of 32 gunthas. As per the pleadings the defendant no.1 on behalf of defendant nos.2 to 6 entered into an agreement of sale in respect of the suit land by executing the agreement of sale. By order dated 20.11.2010 the trial court has dismissed the said special civil suit no.172 of 2006 in default. Respondent no.1/original plaintiff have filed various applications including the application bearing MCA No.122 of 2012 for restoration, however, the trial court has dismissed all the applications. Being aggrieved by the same, respondent no.1 has preferred writ petition no.6554 of 2015. By order dated 20.7.2018 this Court has partly allowed the petition and restored the Special Civil Suit No.172 of 2006 on the file of the learned Civil Judge S.D. Aurangabad on certain conditions including the condition of expeditious disposal of the case in a time bound manner and also with the condition directing the respondent no.1/original plaintiff to file affidavit in lieu of examination-in-chief before the Trial court on 4.8.2018. It is further part of the record that respondent no.1/original plaintiff has filed her affidavit of evidence exh.50. In the meantime, defendant no.2 (petitioners no.3 and 5) have filed their separate written statements and trial court has also recasted the issue in the light of the subsequent pleadings. Thus, respondent no.1/original plaintiff has filed an application exh.155 in the said special civil suit no.172 of 2006 seeking permission to file fresh affidavit of evidence. The petitioner herein and original defendant no.3 (respondent no.3 herein) have filed their say to the said application and strongly resisted it. They have resisted the application mainly on the ground that since the evidence affidavit exh.50 has become integral part of evidence and, therefore, it cannot be substituted by fling fresh affidavit of evidence. Further, remaining defendants have also strongly resisted the application by adopting the say of petitioner and respondent no.3 herein. 3. They have resisted the application mainly on the ground that since the evidence affidavit exh.50 has become integral part of evidence and, therefore, it cannot be substituted by fling fresh affidavit of evidence. Further, remaining defendants have also strongly resisted the application by adopting the say of petitioner and respondent no.3 herein. 3. By order dated 4.1.2021 below exh.155 in Special Civil Suit No.172 of 2006 the trial court has allowed the application and permitted respondent no.1/plaintiff to file her fresh evidence affidavit and evidence affidavit filed by the respondent no.1/plaintiff alonewith exh.155 is directed to be "Read and Recorded". Hence, this writ petition. 4. Learned counsel for the petitioner submits that in terms of the provisions of Order 18 Rule 4 of the Civil Procedure code read with section 137 of the Evidence Act, the evidence in the form of affidavit of evidence exh.50 which is already placed on record cannot be discarded. The learned counsel submits that the affidavit of evidence exh.50 is required to be considered. 5. In the alternate, the learned counsel for the petitioner/original defendant no.2 submits that the respondent/plaintiff though entitled to lead further examination-in-chief or can also file an affidavit but the Court cannot order deletion of any portion of the earlier affidavit. Learned counsel for the petitioner has objected the very terminology used by the trial court while allowing the application Exh.155 permitting thereby the respondent no.1/plaintiff to file fresh evidence affidavit. Learned counsel for the petitioner submits that the trial court should have granted permission to respondent no.1/plaintiff to file additional affidavit of evidence, but, certainly not fresh affidavit of evidence. 6. The learned counsel for the petitioner/s to substantiate his submissions, placed reliance on the following cases :- (a) Digambar Ramchandra Bawaskar Vs. Soma Prabhu Pawar ; reported in LAWS (BOM) 2017 7 (b) Baneanea Cooperative Housing Society Ltd. Vs. Vasanti Gajanan Nerurkar ; reported in LAWS (BOM) 2015 6 23. (c) Bank of India Vs. Allibhoy Mohammed ; reported in LAWS (BOM) 2008 1 164. (d) Rasiklal Manickchand Dhariwal Vs. M. S. S. Fuood Products ; reported in LAWS (SC) 2011 11 (e) Rajesh Varma Vs. Aminex Holdings and Investments ; reported in LAWS (BOM) 2008 1 (f) M/s Mukund Iron Staff Association Co.Op Housing Society Vs. Vasant Ramchandra Patil and others in writ petition no.7688 of 2013. (e) Deepak Dwarkaprasad Gupta and anr Vs. (d) Rasiklal Manickchand Dhariwal Vs. M. S. S. Fuood Products ; reported in LAWS (SC) 2011 11 (e) Rajesh Varma Vs. Aminex Holdings and Investments ; reported in LAWS (BOM) 2008 1 (f) M/s Mukund Iron Staff Association Co.Op Housing Society Vs. Vasant Ramchandra Patil and others in writ petition no.7688 of 2013. (e) Deepak Dwarkaprasad Gupta and anr Vs. M/s Sitaram Enterprises in writ petition no.7328 of 2011. (f) Vinay Jagdishchandra Pande Vs. Satyanarayan Pande and another in writ petition no.4659 of 2019. (e)Sou. Parvati and others Vs. Sk. Rasul and another reported in 2014 2 MhLJ 457 . 7. earned counsel for respondent no.1/original plaintiff submits that in the written statement filed by the defendant no.1 mother on her own behalf and on behalf of defendant nos.2 to 6 the execution and contents of agreement of sale, description of the suit property, consideration amount, area of the suit property agreed to be sold has been specifically admitted. It is further stated that the defendants are ready to perform its part of contract to execute the sale- deed to the extent of 2 Acres 38 Gunthas as mentioned in the agreement of sale. However, the original defendant no.2 (petitioner herein), 3 and 5 have filed their separate written statements with total denial. According to them, agreement of sale is not binding on them. Learned counsel submits that in view of granting permission to defendant nos.2,3 and 5 to file fresh written statement, in consequence thereof, the crucial admissions given in favour of respondent/plaintiff in earlier written statement stood contrary to the stand taken in the subsequent written statement. Learned counsel submits that the trial court has framed additional issue on 10.2.2020 casting the burden thereof on respondent no.1/plaintiff. Said issue is "Whether the agreement of sale dated 11.6.2005 is enforceable against defendant nos.2, 3 and 5 ?". Learned counsel submits that considering the said change in the circumstances, respondent no.1/plaintiff gets right to file fresh evidence affidavit on record. 8. Learned counsel for respondent no.1/original plaintiff submits that the basic aim and object in introducing the amendment to order 18 Rule 4 of the Civil Procedure Code is to ensure speedy trial and further to ensure that the Court time should not be wasted in recording lengthy examination-in-chief. 8. Learned counsel for respondent no.1/original plaintiff submits that the basic aim and object in introducing the amendment to order 18 Rule 4 of the Civil Procedure Code is to ensure speedy trial and further to ensure that the Court time should not be wasted in recording lengthy examination-in-chief. Learned counsel submits that in terms of the plain reading of Order 18 Rule 4 of the CPC no restrictions are imposed for fling fresh evidence of affidavit on record. Order 18 Rule 4 of the CPC does not limit or restrict to file a single affidavit of evidence. Learned counsel submits that thus there is no legal bar or embargo in fling fresh evidence affidavit, especially, in the peculiar facts and circumstances, when the defendant nos.2,3 and 5 have taken totally contrary stand to the stand taken in the earlier written statement. 9. Learned counsel for respondent no.1/plaintiff submits that the plaintiff has practically reproduced each and every word of the earlier evidence affidavit, however, the plaintiff has added additional portion in examination-in-chief affidavit keeping in view subsequent written statement of respondent nos. 2,3 and 5. Thus, the contents of the earlier evidence affidavit are retained as it is and there is no deletion or withdrawal of any contents. Thus, no restrictions can be put on the respondent/plaintiff and right of the plaintiff to file fresh evidence affidavit retaining earlier contents of the evidence cannot be curtailed or taken away. 10. Learned counsel submits that by applying "Prejudice Principle" as referred by the Hon'ble Apex Court in the case of Rasiklal Manikchand Dhariwal and another Vs. M.S.S. Food Products, reported in (2012) 2 SCC 196 , if the plaintiff is permitted to file fresh evidence affidavit on record retaining the contents of the earlier evidence affidavit as it is, no prejudice will be caused to the defendants. The defendants are at liberty to cross-examine the plaintiff at the fullest extent. Even by applying the 'Doctrine of Proportionality' as discussed by the Apex Court in the said case, the legal right of the plaintiff to file fresh evidence affidavit in the changed scenario cannot be taken away. Learned counsel submits that if the plaintiff is permitted to file fresh evidence affidavit, no prejudice would be caused to the defendants. Even by applying the 'Doctrine of Proportionality' as discussed by the Apex Court in the said case, the legal right of the plaintiff to file fresh evidence affidavit in the changed scenario cannot be taken away. Learned counsel submits that if the plaintiff is permitted to file fresh evidence affidavit, no prejudice would be caused to the defendants. Learned counsel submits that it is well settled that where the Code is silent about something, the Court acts according to justice, equity and good conscience. Learned counsel submits that the Apex Court has consistently taken a view that procedure is handmade and is meant to facilitate rendering substantial justice to the parties and not a penal enactment for punishments and penalties. 11. Learned counsel submits that defendant nos.2,3 and 5 are permitted to file separate written statement almost after 12 years of the institution of the suit, and, thus they themselves invited reversal of stage of suit from stage of evidence to the stage of fling of written statement and affidavit of evidence. In view of the same, the petitioner has no locus to raise objection to the application filed by the respondent/plaintiff for leading fresh evidence. Learned counsel submits that there is no substance in this writ petition and writ petition is liable to be dismissed. 12. The learned counsel for the respondent/s to substantiate his contention, placed reliance on the following cases :- (a) Rasiklal Manickchand Dhariwal and another Vs. M. S. S. Fuood Products reported in (2012) 2 SCC 196 . (b) Centenary Baptish Church Vs. Shyamsunder and another ; reported in 2004 (1) ALD 581 . (c) Bhaewan Swaroop and others Vs. Mool Chand and others ; reported in AIR 1983 SC 355 . (d) Saneram Sineh Vs. Election Tribunal, Kotah, Bhurey ; reported in 1955 AIR SC 425. (e) Ganesh Tradine Co. Vs. Moji Ram ; reported in 1978 AIR SC 484. 13. Under the amended provisions of Order 18 Rule 4 of the CPC, the examination-in-chief of the witness has been replaced by the provisions for fling the affidavit. The object behind the amendment to order 18 Rule 4 of the CPC is to ensure speedy trial. It further appears from the plain reading of Order 18 Rule 4 of the CPC that no restrictions are created for fling the another evidence of affidavit on record. 14. The object behind the amendment to order 18 Rule 4 of the CPC is to ensure speedy trial. It further appears from the plain reading of Order 18 Rule 4 of the CPC that no restrictions are created for fling the another evidence of affidavit on record. 14. In the instant case, in the peculiar facts, where the petitioner and defendant nos.3 and 5 have taken totally a contrary stand to their earlier written statement and since on the basis of their contrary stand, the trial court has also framed additional issues, it would be appropriate on the part of the respondent no.1/plaintiff to file the additional affidavit of evidence. It is also not disputed that the respondent/plaintiff has practically reproduced each and every word of the earlier evidence affidavit, however, additional portion of the affidavit came to be inserted keeping in view the subsequent contrary stand taken by the petitioner and defendant nos.3 and 5 in their separate written statement. it is not out of place to mention here that the defendant no.1 mother for her own and on behalf of defendant nos.2 to 6 have filed written statement admitting therein the contents of the agreement of the sale, description of the suit property, consideration amount, area of the agricultural land agreed to be sold and further shown her readiness to perform part of the contract to execute the sale-deed of the property as mentioned in the agreement of sale. 15. In the instant case, respondent no.1/plaintiff though filed affidavit of evidence Exh.50, however, she has not entered in the witness box to testify the contents of her affidavit in evidence. 16. In a case of Bank of India Vs. Allibhoy (supra) relied upon by the learned counsel for the petitioner, this Court has held that in the appeal able cases, though examination-in-chief of a witness is permissible in the form of affidavit, such affidavit cannot be ordered to 13 WP 1104.2021.odt form part of the evidence unless the deponent thereof entered the witness box and confirms that contents of the affidavit are as per his say and affidavit is under his signature and the statement being made on oath recorded by following procedure prescribed under Rule 5. 17. 17. The Supreme Court in a case of Rasiklal Manikchand Dhariwal (Supra) relief upon by the learned counsel for respondent no.1 in paragraph nos.76, 77 and 78 has observed as follows :- "76. The prejudice principle was accordingly applied and the Court said that : (Ameer Trading Corpn Ltd., Vs. Shapoorji Data Processing Ltd ) "the defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event [the defendant] desires to cross-examine the said witness he would be permitted to do so in the open court." 77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the Notary or Judicial Officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already. 78. In our view, there is no requirement in Order XVIII Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, re-examination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless defendant's right to cross examine him has been closed, such evidence (examination-in- chief) does not cease to be legal evidence." 18. It is thus clear that the affidavit of evidence once sworn before the authority empowered to administer the oath would not necessarily required the appearance of the affiant in the witness box for affirmation to formally prove the affidavit, however, witness may step into witness box for further examination-in-chief or for cross examination. This Court in Baneanea Co-operative Housing Society Ltd. Vs. This Court in Baneanea Co-operative Housing Society Ltd. Vs. Vasanti Gajanan Nerurkar reported in LAWS (BOM) 2015 6 23 : 2015 (5) BomCR paee 813 relied upon by the learned counsel for petitioner, has held that affidavit cannot be withdrawn as it has become a part of the record. This Court had an occasion to consider this issue following the view expressed in Rasiklal's case and in paraeraph no.7 to 11 has made following observations :- "7. The submission by Mr. Jagtiani and Mr. Kanade is well founded, and it has one immediate consequence for our present purposes : once an Evidence Affidavit is thus filed, and since there is no absolute requirement of it being required to be reaffirmed by the deponent from the witness box before that affidavit forms part of the evidentiary record, it follows that it is examination-in-chief as soon as it is affirmed (or, at any rate, affirmed and filed) and it is not thereafter possible to "withdraw" an Evidence Affidavit. Once an Evidence Affidavit is filed, the examination-in-chief of the deponent has, to all intents and purposes, begun. It may be permissible for the deponent to file a further affidavit, since Order XVIII Rule 4 does not limit itself to a single affidavit, and although there is some authority for the proposition that a witness may not continuously file fresh affidavits to keep improving his case, the view of our court is somewhat different, viz., that there is no impediment to the taking of additional Examination-in-Chief or the filing of a further or additional or supplemental Affidavit in lieu of Examination-in- Chief. This was the view taken by a learned single Judge of this Court (Khanwilkar, J., as he then was) in Rajesh Varma v Aminex Holdings and Investments and Ors. 2008 (3) Mh.L.J. 460 , paragraph 12. Not only am I in most respectful agreement with that decision, but it binds me; and it is also the view that I took in a recent order. 8. What is not in doubt is that there can never be a withdrawal of an Evidence Affidavit just as there can never be a withdrawal of an examination-in-chief conducted directly in Court. This position, following Rasiklal Manikchand, raises some subsidiary questions :- (1) what are the consequences of a deponent filing an Evidence Affidavit but not making himself available to a cross-examination? This position, following Rasiklal Manikchand, raises some subsidiary questions :- (1) what are the consequences of a deponent filing an Evidence Affidavit but not making himself available to a cross-examination? (2) Is it permissible for a Court to order the expunging or redaction of any part of an Evidence Affidavit? 9. The first of these questions arises more frequently than one might suppose on a bare reading of the statute. Implicit in the CPC and its provisions regarding evidence is the assumption that a trial progresses without long gaps in time and with reasonable despatch. Our experience is different. The reasons are many, but perhaps the most obvious is the crowding of court dockets. This makes it impractical to take every single case in the timely fashion that it deserves. The result is that there is often a considerable time lag, sometimes of several years, between the filing of an Evidence Affidavit and the commencement of cross-examination. Time is unkind to us all; to litigants perhaps more than anyone else. By the time the trial begins, the deponent may not be in a position any longer to withstand the stress of a cross-examination. This is the situation in which Mr. Doctor's client, for instance, finds himself. At the time when he filed his Evidence Affidavit, some years ago, he 7 Order dated 4th March 2015 in Testamentary Suit No.65 of 2005, Aban Homa Petit and Anr. v Naryosang D. Cassad. was prepared to undergo a cross-examination. For whatever reason, that did not happen. His age and failing health no longer permit him to withstand a cross-examination. 10. There are other situations too. A party may want to lead the evidence of a witness. That witness does file an Evidence Affidavit. But by the time the opportunity for a cross-examination finally comes around, that witness may longer be willing to give evidence. This is particularly noticeable in the case of companies and bodies corporate, independent juristic entities all, but who can only ever give evidence through individuals speaking on their behalf. Again, years after an Evidence Affidavit is filed, the witness is simply unavailable to that body corporate. This is of some significance in commercial disputes. It often happens that large corporations file an Evidence Affidavit of a serving officer. This is true of large government sector companies, insurance companies, as also private companies of varying sizes. Again, years after an Evidence Affidavit is filed, the witness is simply unavailable to that body corporate. This is of some significance in commercial disputes. It often happens that large corporations file an Evidence Affidavit of a serving officer. This is true of large government sector companies, insurance companies, as also private companies of varying sizes. Sometimes the deponent and the company part ways on less than amicable terms and the deponent is then longer available to be offered for cross-examination. Should the corporate then be required to summon the deponent, i.e., to compel his attendance, particularly where the corporate is conceivably placed at a very considerable disadvantage? For having parted ways unhappily, the deponent might well disavow his Evidence Affidavit earlier filed and give evidence against the body corporate. Or should the body corporate be permitted to 'substitute' the evidence of that witness with the evidence of another? After all, these are not situations of the parties' making, be they individuals or bodies corporate; they are the result of the delays endemic to our judicial system. Our practices seem to be out of step with our rules of procedure and, consequently, with the provisions of substantive law such as the Evidence Act. 11. Broadly, there are two situations we must consider. First, where the witness is no longer physically available, i.e., he has expired between the time of filing of his Evidence Affidavit and the time for cross-examination. The law in this regard is, I believe, well-settled, and it is simply this: that where the testimony is incomplete by reason of death or incapacity of the witness before cross- examination, the evidence, admissible when given, does not cease to be so merely on account of that intervening factual circumstance. 17 WP 1104.2021.odt What probative or evidentiary value is to be attached to this evidence is another matter, and turns on the circumstances of each case. A court may seek independent corroboration of that evidence. It may accept it, albeit cautiously, and that is no infirmity per se in the final decision. This was the view of Mr. Justice H.R. Khanna as a learned single Judge of the Delhi High Court in Krishan Dayal Vs. Chandu Ram and I am in most respectful agreement with that view. 19. Even, this Court in a case Dieambar Ramchandra Bawaskar Vs. This was the view of Mr. Justice H.R. Khanna as a learned single Judge of the Delhi High Court in Krishan Dayal Vs. Chandu Ram and I am in most respectful agreement with that view. 19. Even, this Court in a case Dieambar Ramchandra Bawaskar Vs. Soma Prabhu Pawar ; reported in LAWS (BOM) 2017 7 342 in writ petition no.1539 of 2016 by referring all above judgments in paragraph No.15 has made following observations :- "15. In the light of the above, I do not find that the impugned order could be termed as being perverse or erroneous. The petitioner cannot be permitted to withdraw his affidavit filed before the Court. However, considering the law laid down, the plaintiff would have the option of explaining the error in the affidavit by stepping into the witness box to lead further oral examination-in-chief or file an additional affidavit as a part of the examination-in-chief and clarify the mistake if any." 20. In the instant case, the learned counsel for the petitioner has not disputed the legal position as discussed in the case referred above, however, the learned counsel has vehemently submitted that the affidavit of evidence filed subsequently by respondent no.1/plaintiff cannot be termed as a fresh affidavit of evidence ignoring or deleting her earlier affidavit of evidence Exhibit 50. In this case, considering the aaa/- peculiar facts that the petitioner and defendants no.3 and 5 have separately filed their separate written statements denying each and every contents of the plaint, which is contrary to the written statement filed by the defendant no.1 for herself or on behalf of them almost admitting all the contents of the plaint, it would be proper, legal and correct that respondent no.1/plaintiff is permitted to file the affidavit of evidence. It is also a part of the record that affidavit of evidence filed by the respondent no.1/plaintiff specifically is almost replica of earlier affidavit of evidence with obvious insertion of the paragraphs taking care of the specific denial by the petitioner and defendant nos.3 and 5. However, the affidavit of evidence at the later stage filed by the respondent no.1/ plaintiff is required to be treated as an 'additional affidavit' of evidence and not a fresh affidavit of evidence as per the impugned order passed by the trial court. However, the affidavit of evidence at the later stage filed by the respondent no.1/ plaintiff is required to be treated as an 'additional affidavit' of evidence and not a fresh affidavit of evidence as per the impugned order passed by the trial court. In view of the same, this writ petition is required to be allowed partly by modification of the impugned order. Hence, I proceed to pass the following order. aaa/- ORDER i. Writ Petition is hereby partly allowed. ii. The order passed below Exh.155 dated 4.1.2021 in Special Civil Suit No.172 of 2006 is hereby modified only to the extent of clause no.2 of the operative part of the order in the following manner. 'a] The plaintiff is permitted to file her 'additional evidence affidavit.' iv. Writ Petition is accordingly disposed off.