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.
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