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. 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 ; reporte