JUDGMENT

S.B. Sinha, J.-Leave granted.

2. Interpretation of Order 18 Rules 4 and 5 of the Code of Civil Procedure falls for consideration 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. 2428/2003.

3. The said question arises in the following circumstances.

The respondent herein filed the suit No. 156/169 of 2001 in the Court of Small Cause Bombay against the appellant for eviction of the appellant inter alia on the ground that the provisions of Maharashtra Rent Control Act, 1999 had no application in relation to the premises in question. An affidavit was filed by the respondent herein purporting to be his examination-in-chief to be taken on evidence in the suit.

4. 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. 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 O