I am defending a suit for specific performance, filed against my wife as Defendant No.1 and me as Defendant No.2. Plaintiff's evidence is complete and defendants' evidence is to begin.
Due to incorrect legal advise, only defendant no.1 filed her Written Statement and I, defendant no.2, didn't, whereas I am the person handling everything and wife will have problem facing cross examination.
I filed affidavit, though I am not producing ANY documentary evidence with the affidavit as plaintiff himself had furnished all necessary documents. I only need to refute their story.
Now, plaintiff has filed application u/s sec 151 of CPC order 8 Rule 2 & 5, pleading for rejection of my affidavit on the ground that I failed to file WS, citing Bombay HC judgment in JYOTSNA MANIKLAL BHANDARI VS KESHARCHAND GULABCHAND (2011).
I will be grateful if you could kindly enlighten me on followings:-
1) Case law to the effect that my affidavit need not be rejected merely because I didn't file WS (I have been participating in the proceedings from day 1, and I am not furnishing any documentary evidence, only rebutting plaintiff's story)
2) whether I can file a WS now, if absolutely necessary? Suit was filed in June 2014.
3) Whether I can claim that WS of defendant 1 must be deemed to be filed by both of us?
4) Whether I can adopt WS of defendant No.1 at this stage?
5) Whether I can still appear as Witness, if not as Defendent No.2?
Kindly advise. Thank you very much in advance,