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2007 DIGILAW 238 (ORI)

Sk. Sayed v. Sk. Mukhtar

2007-04-09

A.S.NAIDU

body2007
ORDER 9.4.2007 : Heard. 2. The order dated 20.3.2007 passed by the learned Civil Judge (JD), 1st Court, Cuttack in C.S.No. 167 of 2004 (I) is assailed by the petitioners who are defendants in that suit. The said order consists of two parts. By the first part, a petition filed by the petitioners seeking permission to re-examine defend¬ant No. 4 was rejected. But then against the said order no Writ Petition has been filed. The second part is with regard to refusing the prayer to return the affidavit-evidence filed by D.W.2 and to substitute the same by another. 3. According to the learned counsel for the petitioners in a hurried manner the affidavit-evidence of D.W.2 was filed in Court but subsequently it was found that certain facts stated therein were not correct. Accordingly D.W.2 filed a petition for permission to take back the affidavit-evidence and substitute the same by another. The trial Court has rejected the said prayer by the impugned order. 4. Order 18, Rule 4 CPC deals with recording of evidence. The said provision emphasizes that in every case the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party. In the present case in consonance with the said provision the affidavit-evidence of D.W.2 has been filed before the Court. After going though the impugned order, this Court feels that as there is no provision in the Code of Civil Procedure or any other law for returning any affidavit-evidence and substituting the same by another, the Court below has rightly rejected the prayer. In consonance with the provisions of Order 18, Rule 4 CPC if a witness comes to dock and gives evidence, the same cannot be deleted only on the ground that any mistake crept in such evidence. However, if any factual error is found to have been committed, it is open to the party concerned to get the witness re-examined after cross-examination is over. 5. In view of aforesaid clear position of law, this Court is not inclined to interfere with the impugned order and dismiss¬es the Writ Petition. Petition dismissed.