G.S. Kulkarni, J.

1. Heard learned Counsel for the parties. Petitioner no.1 who is defendant no. 3 and petitioner no. 2 who is defendant no. 1 in the eviction suit being R.A.E. & R. Suit No. 1022/1558 of 2009 instituted by the respondents against the petitioners are before the Court challenging the order dated 24 August 2015 passed by the learned Judge of the Small Causes Court, Mumbai, whereby the application of petitioner no. 2/defendant no. 1 for reopening of the evidence of the defendants, by allowing defendant no. 3 to file his affidavit of examination-in-chief and to be cross examined by the plaintiffs, stands rejected.

2. In nutshell the facts are:

On 4 September 2009 the respondents landlords filed the suit in question in the Small Causes Court at Mumbai against the petitioners (defendant no.3 and defendant no. 1) and one Smt. Sindhumati Pathak (defendant no. 2). It is not in dispute that all the defendants had appeared in the suit in response to the suit summons.

3. For the sake of convenience the parties are referred as they stand before the trial Court.

4. A written statement was filed on behalf of defendant nos.1 and 2 as also a separate written statement was filed on behalf of defendant no.3 in or about January, 2011. After the issues were framed, the parties intended to lead their evidence. Defendant no. 1 tendered his evidence by filing affidavit in lieu of examination in chief. On 11 June 2015, defendant no. 1 was cross-examined and the cross examination of defendant no.1 was completed on 7 July 2015. In concluding the cross examination, the learned trial Judge recorded that "Defendant closed their evidence. Matter adjourned for arguments." The roznama of the proceedings of the trial court shows that on 7 July 2015 when the cross examination of defendant no. 1 was complete, the Advocate for the defendants was absent. It is not in dispute that all the defendants were represented by a common advocate.

5. Thereafter, the suit was listed for final arguments on 20 July 2015 when on the request of the defendants, an adjournment was granted for final argument on 29 July 2015 when written arguments (Exhibit 44) were filed on behalf of the defendants and the suit was adjourned to 30 July 2015 for plaintiffs' arguments. On 30 July 2015 the Court proceeded to hear the arguments, when the advocate for both the parties were present. The Court has recorded in the roznama that written arguments are filed on behalf of the defendants. On 31 July 2015 "arguments on behalf of the plaintiffs were fully heard and on the oral request of the defendants' advocate, the matter was adjourned for defendants' arguments, if any." However, what happened on 3 August 2015 is something peculiar. An application below 'Exhibit 45' was filed by defendant no.1 stated to be filed on behalf of defendant no. 3, praying for reopening of evidence and further praying that defendant no. 3 be allowed to file his affidavit of examination in chief and be cross examined. The prayer in the said application reads thus:-

“(a) that the evidence of Defendants be reopened and the Defendant No.3 be allowed to file his Affidavit of examination in chief and to be cross examined by the plaintiffs."

6. In paragraph 1 of the said application, defendant no. 1 stated that though the suit was listed for arguments, however, after the cross examination of defendant no. 1, defendant no. 3 was required to file his affidavit of examination in chief, however at that time he was not keeping good health and was not in a position to file affidavit of evidence. As the defendant no. 3 has recovered to health and was in a position to file affidavit of examination in chief and to face a cross examination to prove his case, it was just and proper that evidence of defendant no. 3 be reopened and defendant no. 3 be allowed to file his affidavit in support of the case and that no prejudice would be caused to the plaintiffs if the application is granted.

7. This application of defendant no.