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2005 DIGILAW 359 (CAL)

ANUPAMA CHOWDHURY v. YEAR ALL MALLICK

2005-06-07

SUBHRO KAMAL MUKHERJEE

body2005
Subhro Kamal Mukherjee ( 1 ) THIS is an application under Article 227 of the Constitution of India ("the said application" in short) against Order No. 41 dated April, 20, 2004 passed by the learned Civil Judge (Junior Division ). Second Court at baruipur, District: South 24 Parganas in Title Suit No. 136 of 2001. By the order impugned the learned Trial Judge allowed an application filed by the defendant No. 1 and the affidavit evidence of Jiban Krishna Chowdhury, the plaintiffs' witness No. 1, was rejected. ( 2 ) THE said application arises out of a suit for permanent injunction. The trial of the suit has commenced and one Jiban Krishna Chowdhury filed his affidavit-evidence on behalf of the plaintiffs. It is stated that the said jiban Krishna Chowdhury is the husband of the plaintiff No. 2 and he, also holds Power of Attorney on behalf of the plaintiffs. The affidavit-evidence is filed in question and answer form. He has verified his statement as to true his knowledge and belief. ( 3 ) THE defendant No. 1 filed an application for rejection of such affidavit-evidence on the ground that the affidavit-evidence was is not confirmation to the provisions of Order 19 of the Code of Civil Procedure. ( 4 ) THE learned Trial Judge by the order impugned dated April, 20, 2004 rejected the said affidavit-evidence of the said witness of the plaintiffs, inter alia, on the grounds that the same was in question and answer form, it was not clear to the learned Judge as to what of his statements were true to the knowledge of the said witness and what part of the statements were based on his information and belief. The learned Judge opined that such affidavit-evidence infringed the provisions of Rule 3 of Order 19 of the Code of Civil Procedure. ( 5 ) I have heard Mr. Sibasish Ghosh, learned Advocate, appearing for the petitioner, and Mr. Jishnu Chowdhury, learned Advocate, appearing for the defendant/opposite party No. 1. Mr. Ghosh, learned Advocate for the plaintiffs submits that the learned Trial Judge acted illegally and with material irregularity in exercise of his jurisdiction in rejection the affidavit-evidence of the said witness of the plaintiffs Mr. Sibasish Ghosh, learned Advocate, appearing for the petitioner, and Mr. Jishnu Chowdhury, learned Advocate, appearing for the defendant/opposite party No. 1. Mr. Ghosh, learned Advocate for the plaintiffs submits that the learned Trial Judge acted illegally and with material irregularity in exercise of his jurisdiction in rejection the affidavit-evidence of the said witness of the plaintiffs Mr. Chowdhury, learned Advocate appearing for the defendant No. 1, on the contrary, supports the order of the learned Trial Judge and submits that affidavit-evidence cannot be accepted in the question and answer form. ( 6 ) THE Code of Civil Procedure has been amended in 2002 and the amending Act of 2002 has substituted Order 18 Rule 4 of the Code of Civil procedure by a new rule. In view of the present provisions of Rule 4 of order 18 of the Code of Civil Procedure, a party is not required to summon his witness in Court to give evidence or to produce any document. The examination in chief is not ordinarily to be recorded in open Court, but shall be in the form of an affidavit. The amendment was introduced to simplify the procedure and thereby shorten the life of litigation. Under sub-rule (1) of rule 4 of Order 18 in every case the examination-in-chief of the witness shall be on affidavit. However, the witness shall be cross-examined in open court. Therefore, this procedure of giving evidence-on-affidavit is only substitute of examination-in-chief in open Court. I do not think if such evidence is filed in question and answer form, such affidavit infringes any provision of law. ( 7 ) THE learned Judge was not considering the evidentiary value of the evidence of the said witness. When the witness has filed his affidavit-evidence, his examination in chief is complete, but he is subjected to cross-examination. It is open to his adversary to cross-examine him in relation to his affidavit-evidence. ( 8 ) THE learned Trial Judge, in my view, pre-judged the evidentiary value of the evidence of the said witness and exceeded his jurisdiction in rejecting such affidavit. ( 9 ) THEREFORE, the order impugned is set aside. ( 10 ) THE learned Trial Judge is directed to accept the affidavit-evidence filed by Jiban Krishna Chowdhury, the witness of the plaintiffs. However, the plaintiff shall produce the witness before the Court for his cross-examination by the defendants. ( 9 ) THEREFORE, the order impugned is set aside. ( 10 ) THE learned Trial Judge is directed to accept the affidavit-evidence filed by Jiban Krishna Chowdhury, the witness of the plaintiffs. However, the plaintiff shall produce the witness before the Court for his cross-examination by the defendants. ( 11 ) THE said application is, thus, allowed. ( 12 ) AS I have disposed of the main matter, no separate order is required to be passed in connection with C. A. N. No. 1474 of 2005 filed by the defendant/opposite party No. 1 and the said application is, also, disposed of. The learned Trial Judge is directed to expedite the hearing of the suit as far as practicable. ( 13 ) I make no order as to cost.