Order XVIII Rule 4 of C.P.C., has generated more problems, than what it proposes to solve; are in a way, fortified by this case. He filed an affidavit, in lieu of chief-examination (for short 'the affidavit'), as provided for under Rule 4 of Order XVIII C.P.C. On the basis of its contents, Ex.B-1 was marked, by the Court. Thereafter, the 1st respondent changed his advocate, and on his advise, he wanted to withdraw the affidavit filed earlier and substitute the same with another. For that purpose, he filed I.A.No.1233 of 2011, citing Rule 4 of Order XVIII C.P.C. The petitioner opposed the application. Obviously because the changed version of the 1st respondent was supporting his case, the 2nd respondent did not oppose the application. Through its order dated 26-08-2011, the trial Court allowed the I.A. The same is challenged in this C.R.P. - "An affidavit is merely an affidavit when it is filed in the Court. But when a witness appears for cross-examination, it is necessary for the witness either to confirm or differ with the contents of the affidavit. After his confirmation or denial of the contents of affidavit, whatever recorded is the evidence and if the witness confirms the affidavit, the affidavit would become part of the statement made by the deponent before the Court. Therefore what is finally taken as evidence by the Court is not the affidavit, but what is contained in the affidavit, if confirmed by the deponent when he appears before the Court for cross-examination. - If an affidavit has already become part of record, alteration or substitution thereof would be nothing but that of the chief-examination itself. In the instant case, the trial Court proceeded on the assumption that the affidavit did not become part of record, because DW-1 was not cross-examined. Such an approach is untenable, in view of the fact that the affidavit was acted upon and a document mentioned therein was given marking. If the affidavit filed were to have been permitted to be withdrawn, the fate of the document marked on its basis would hang in a limbo. The reason in that there is no process of demarking a document, once marked.

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY        

C.R.P.No.237 of 2012

06.09.2012

Sri Mohammed Abdul Ahmad  

Sri Mohammed Abdul Gafoor @ Ahmed,and another  

Counsel for petitioner: Sri D. Madhava Rao

Counsel for Respondents :

<GIST:

>HEAD NOTE:  

?Cases referred
1)  AIR 2005 AP 253 (FB)
2)  AIR 2003 SC 189
3)AIR 2004 SC 355

ORDER:
     
The observations made by many lawyers and jurists, whether in the course of
proceedings, or in the discussions outside, that the amendment to Order XVIII
Rule 4 of C.P.C., has generated more problems, than what it proposes to solve;
are in a way, fortified by this case.

The 2nd respondent herein by name, Kadiyala Appa Rao, filed O.S.No.25 of 2006 in
the Court of Senior Civil Judge, Khammam against the 1st respondent (defendant
No.1), and the petitioner (defendant No.2) for the relief of specific
performance of agreement of sale, dated 25-06-1993, in respect of the suit
schedule property.  After the pleadings became complete, issues were framed and
the trial of the suit commenced.  The evidence of the 2nd respondent, i.e.,
plaintiff was concluded.  The next stage was recording of evidence, on behalf of
the 1st respondent.  He filed an affidavit, in lieu of chief-examination (for
short 'the affidavit'),
as provided for under Rule 4 of Order XVIII C.P.C.  On the basis of its
contents, Ex.B-1 was marked, by the Court.  Thereafter, the
1st respondent changed his advocate, and on his advise, he wanted to withdraw
the affidavit filed earlier and substitute the same with another.  For that
purpose, he filed I.A.No.1233 of 2011, citing Rule 4 of Order XVIII C.P.C.  The
petitioner opposed the application. Obviously because the changed version of the
1st respondent was supporting his case, the 2nd respondent did not oppose the
application.  Through its order dated 26-08-2011,
the trial Court allowed the I.A.  The same is challenged in this C.R.P.

Sri D. Madhava Rao, learned counsel for the petitioner submits that the facility
created under Rule 4 of Order XVIII C.P.C.,
to adduce evidence, in chief, by filing an affidavit; was availed by the 1st
respondent, and once the affidavit was accepted by the trial Court and Ex.B-1
was marked, it became part of record.
He contends that just as evidence recorded by the trial Court, though in chief,
cannot be permitted to be amended, at the discretion of the party, and the
affidavit once taken into account by the Court, cannot be permitted to be
altered, much less substituted in its entirety.

There is no representation for the respondents.

In the course of evidence, the 1st respondent filed the affidavit.  He has made
reference to certain documents in it.  The original of the affidavit was
submitted to the Court and copies thereof were furnished to the other parties,
as required under Rule 4 of Order XVIII C.P.C.

The question as to when an affidavit filed, in lieu of chief-examination would
form part of record, was dealt with by a Full Bench of this Court in RITA PANDIT
v. ATUL PANDIT1.  The judgments of the Supreme Court in SALEM ADVOCATE BAR      
ASSOCIATION, TAMIL NADU v. UNION OF INDIA2 and AMEER TRADING CORPORATION LTD.,              
v. SHAPOORJI DATA PROCESSING Ltd.,3 apart form the judgments rendered by the    
High Courts of Kerala and Bombay, were discussed at length.  The Full Bench
summed up its observations in paragraph 24, as under:

"An affidavit is merely an affidavit when it is filed in the Court.  But when a
witness appears for cross-examination, it is necessary for the witness either to
confirm or differ with the contents of the affidavit.  After his confirmation or
denial of the contents of affidavit, whatever recorded is the evidence and if
the witness confirms the affidavit, the affidavit would become part of the
statement made by the deponent before the Court.  Therefore what is finally
taken as evidence by the Court is not the affidavit, but what is contained in
the affidavit, if confirmed by the deponent when he appears before the Court for
cross-examination.  Going by the two judgments of the Supreme Court reported in
Salem Advocate Bar Association, Tamil Nadu v. Union of India (supra) and Ameer
Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., (supra) we hold,

(1)     that in all cases the examination-in-chief has to be          conducted
by way of affidavits;
(2)     that in cases where the witness is not under the control          of the
party who wants to examine him as a witness,          recourse can be taken to
Order 16, Rule 1 of the Code         of Civil Procedure and after taking
recourse to Order 16,         Rule 1 of CPC and after he is summoned by the
Court,         the witness can be asked either to file an affidavit or
can be examined in the Court itself".

From this, it is evident that an affidavit becomes part of evidence, only on its
being confirmed by the person, who filed it.  The expressions "confirmation" or
"denial" were, no doubt, employed by the Full Bench.  However, as to when an
affidavit of this nature can be said to have been confirmed or denied, is not
explained elaborately, and there is possibility for the existence of some
untouched areas.

The appearance of a witness, who filed the affidavit; for cross-examination, and
his having been subjected to cross-examination would, undoubtedly, be a step
towards confirmation.  However, in case the cross-examination as such did not
take place, but the affidavit was acted upon by the Court, it cannot be said
that it has not become part of record.  In a given case, when the affidavit
filed in the Court acted upon such as, by giving marking to the documents
mentioned therein, it can certainly be treated as part of record.  The reason is
that, if the affidavit is not treated as forming part of record on the ground
that the witness was not cross-examined, the very basis for marking of documents
disappears.
A document, which is already given marking, as a consequence, cannot be 
"demarked" and treated as part of record.  Such an inconsistent and illogical
situation cannot be contemplated.  Therefore, giving of marking by a Court to
the documents, mentioned in an affidavit filed in the chief-examination would
make an affidavit as part of record, notwithstanding the fact that the witness
may not have been cross-examined.  

Once the affidavit becomes part of record, the party who filed it looses the
right and prerogative to change or alter it.  For all practical purposes, it is
a chief-examination, recorded and certified by the Court itself.  Here itself,
one has to keep in mind that recording of chief-examination is not a prohibited
step, notwithstanding the amendment to Rule 4 of Order XVIII C.P.C.  In SALEM
ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA (2 supra), the Hon'ble          
Supreme Court held that in case a witness is summoned by the Court, he cannot be 
insisted to file affidavit, and discretion must be left at him. If the witness
so summoned does not wish to file affidavit, in lieu of chief-examination, the
Court would be under obligation to record his oral evidence in chief-
examination.

If an affidavit has already become part of record, alteration or substitution
thereof would be nothing but that of the chief-examination itself.  In the
instant case, the trial Court proceeded on the assumption that the affidavit did
not become part of record, because DW-1 was not cross-examined.  Such an   
approach is untenable, in view of the fact that the affidavit was acted upon and
a document mentioned therein was given marking.  If the affidavit filed were to
have been permitted to be withdrawn, the fate of the document marked on its
basis would hang in a limbo.  The reason in that there is no process of
demarking a document, once marked.   

Hence, the C.R.P. is allowed, and the order under revision is set aside.    The
miscellaneous petition filed in this C.R.P. shall also stand disposed of.

There shall be no order as to costs.


_______________________  
L. NARASIMHA REDDY, J.  
Dt.06-09-2012.