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2006 DIGILAW 928 (KAR)

A. N. KRISHNA MURTHY v. S. K. SUKUMAR

2006-11-16

K.L.MANJUNATH

body2006
( 1 ) THE petitioner is the defendant in O. S. No. 7940/91 before the City Civil judge, Bangalore. The respondent is the pltaintiff. In the suit, the Court directed both the parties to file the affidavits in lieu of examination-in-chief simultaneously. The defendant filed an application under Sec. 151 of Civil procedure Code seeking permission of the court to cross examine PW. 1 and after completion of the evidence of the plainliff to file the affidavit in lieu of examination-in-chief of the defendant after closure of the plaintiff's side. The Trial Court has rejected the application on 4-1-2003 by holding that in view of Order 18 Rule 4 of Civil Procedure Code both the plaintiff and defendant have to file the affidavits of evidence simultaneously and thereafter the Court has to take up the matter for cross-examination of the plaintiff and his witnesses and the defendant and his witnesses respectively. Aggrieved by the same, the present petition is filed. ( 2 ) I have heard the learned Counsel appearing for the petitioner. ( 3 ) ACCORDING to the learned Counsel for the petitioner, the Trial Court has committed an error in calling upon the plaintiff and the defendant simultaneously to file the affidavits in lieu of examination-in-chief and thereafter submit themselves to the cross-examination by the respective Advocates. According to him the Trial Court has misdirected itself in not appreciating the provisions under order 18 Rule 4 of Civil Procedure Code. According to him, the examination in chief of a defendant would be depending upon the evidence let-in by the plaintiff. Many a times the evidence of the defendant may not arise at all. if the defendant is able to secure proper admissions in the cross-examination of the plaintiff and his witnesses. According to him the word used under Order 18 Rule 4 of Civil Procedure code is the word 'witness' and not 'witnesses'. Therefore, he requests this Court to quash the order passed by the Trial Court. Order 18 Rule 4 of Civil Procedure Code reads as hereunder : (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Therefore, he requests this Court to quash the order passed by the Trial Court. Order 18 Rule 4 of Civil Procedure Code reads as hereunder : (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. ( 4 ) THE Trial Court in paragraph-6 of its order has held that as per the amended provisions of Civil Procedure Code, in every case, examination-in-chief witnesses shall be on affidavit and copies thereof shall be supplied to the opposite party and thereafter a Commissioner has to be appointed for the purpose of cross examination and therefore the Court held that all the parties are required to file the affidavit in order to prevent delay and to dispose of the matters as early as possible. ( 5 ) ACCORDING to this Court, the Trial Court has not properly understood the provisions of order 1. 8 Rule 4 of Civil Procedure Code. Under Order 18 Rule 4 of Civil Procedure code, the word used is 'witness' and not 'witnesses'. If the plaintiff has to commence the evidence he has to file the affidavit oi him or if he choose to file the affidavits of his witnesses he is at liberty to file such affidavits and after cross-examination of the witnesses of the plaintiff, if the defendant feels that there is necessity for him to let-in oral evidence he is at liberty to file the affidavit, when the case is set down for the evidence of the defendant. But the defendant cannot be expected to file the affidavit when the case is posted for the plaintiffs evidence. In addition to that the examination-in-chief of the defendant and his witnesses would be depending upon the evidence that would be let in by the plaintiff and his witnesses. Without cross-examining the plaintiff and his witnesses, it is improper for any Court to direct the defendant to file an affidavit of him and his witnesses in lieu of his examination-in-chief even before the closure of the plaintiff evidence. Without cross-examining the plaintiff and his witnesses, it is improper for any Court to direct the defendant to file an affidavit of him and his witnesses in lieu of his examination-in-chief even before the closure of the plaintiff evidence. Many a times, even if the defendant, is intending to enter into the witness box, considering the evidence of the plaintiff there may not any necessity for him to examine any witness on his behalf. In other words, the evidence of the defendant in a suit would be depending upon the evidence of plaintiff. Therefore, the order of the Trial court has to be quashed. ( 6 ) IN the result, the Writ Petition is allowed and the order passed on 4-1-2003 in O. S. No. 7940/2001 passed by the City Civil Judge, bangalore is hereby quashed. The Trial Court is directed to proceed with the case in accordance with law. Petition allowed.