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2008 DIGILAW 319 (GAU)

Mukul Rani Deb v. Haripada Deb

2008-05-02

I.A.ANSARI

body2008
ORDER I.A. Ansari, J. 1. Respondent Nos. 1 and 2 herein instituted Title Suit No. 50 of 2008 seeking declaration of not only their rights and title over the suit land, but also cancellation of the will, claimed to have been executed by Smt. Rajlaxmi Deb (since deceased), mother of the petitioner No. 1 herein and respondent Nos. 1 and 2 herein. 2. The petitioners herein appeared, as defendants, in the suit and filed their written statements, wherein they denied and disputed the allegations made by the plaintiffs (i.e., the respondent Nos. 1 and 2 herein) against the genuineness and/or validity of the said will. 3. In course of time, when the suit reached the stage of evidence, the respondent Nos. 1 and 2, as plaintiffs, submitted their examination-in-chief on affidavit. Thereafter, the petitioner No. 1, who was one of the defendants in the suit, also submitted his examination-in-chief on affidavit. Before cross-examination of the plaintiffs (i.e., respondent Nos. 1 and 2 herein) could have commenced, the petitioner No. 1 herein filed an application in the suit on 25-1-2008, praying for allowing her to submit her further examination-in-chief by way of additional affidavit. With this application, an affidavit, containing further examination-in-chief of the petitioner No. 1 herein, was filed by the petitioner No. 1. By order, dated 25-1-2008, learned trial Court rejected the prayer for filing of the said additional affidavit on the ground that the examination-in-chief, by way of affidavit of the petitioner, had already been received and there was no provision for acceptance of examination-in-chief on additional affidavit. It is the order, dated 25-1-2008, aforementioned which stands impugned by the present petitioners by making this application under Article 227 of the Constitution of India. 4. I have heard Mr. S.M. Chakraborty, learned senior Counsel, appearing on behalf of the petitioners, and Mr. B. Das, learned senior Counsel for the respondents. 5. While considering the present revision petition, what needs to be noted is that supervisory jurisdiction, under Article 227 of the Constitution of India, is exercised by a High Court to keep the subordinate Courts within the bounds of their Jurisdiction. B. Das, learned senior Counsel for the respondents. 5. While considering the present revision petition, what needs to be noted is that supervisory jurisdiction, under Article 227 of the Constitution of India, is exercised by a High Court to keep the subordinate Courts within the bounds of their Jurisdiction. When a subordinate Court assumes Jurisdiction in a case, where it does not have such Jurisdiction, or where a subordinate Court fails to exercise jurisdiction, though it had Jurisdiction or where a subordinate Court exercises its jurisdiction in a manner not permitted by law and occasioning thereby failure of justice, the High Court may step in to exercise its supervisory jurisdiction See Surya Dev Rai v. Ram Chander Rai reported in AIR 2003 SC 3044 . 6. If, therefore, the learned trial Court is found to have refused to accept the examination-in-chief, offered by the petitioner No. 1 in the form of an additional affidavit, though it had the power to accept the same, then, such refusal can be interfered with in exercise of this Court's power under Article 227, for, such refusal would amount to refusal to exercise jurisdiction, where jurisdiction existed. This position of law has not been disputed by the learned Counsel appearing before me. I may also hasten to point out that the refusal by the learned trial Court to accept the additional affidavit is not on merit, but on the ground that it has no jurisdiction to accept such an additional affidavit. 7. Bearing in mind what is observed above, let me point out, now, the scheme of recording of evidence, in a suit, as conceived by the Code of Civil Procedure (in short 'Code'). By way of the amendments, which have been introduced with the help of the Code of Civil Procedure (Amendment) Act, 2002, the scheme for recording of evidence, in a suit as embodied in Order XVIII, has undergone some noticeable changes. The title of Order XVIII reads: Hearing of the suit and Examination of Witnesses 8. Under Order XVIII, Rule 1, it is the plaintiff, who has the right to begin the hearing unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief, which he seeks. Under Order XVIII, Rule 1, it is the plaintiff, who has the right to begin the hearing unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief, which he seeks. In such a case, the defendant has the right to begin. 9. Order XVIII, Rule 2 lays down that on the date fixed for the hearing of the suit or on any other day to which the hearing is adjourned the party, having the right to begin, shall state his case and produce his evidence in support of the issues, which he is bound to prove, and it is, therefore, that the other party shall state his case and produce his evidence, if any, and may, then, address the Court generally, on the whole case, whereupon the party, who begins the hearing, may reply generally, on the whole case. 10. Order XVIII, Rule 3 clarifies that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party, and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may, then, reply specially on the evidence so produced by the party beginning; but the party beginning will, then, be entitled to reply, generally, on the whole case. 11. Order XVIII, Rule 3A makes it clear that where a party himself wishes to appear as a witness, he shall so appear before any other witness, on his behalf, has been examined unless the Court, for reasons to be recorded, permits him to appear, as his own witness, at a later stage. 12. By the Code of Civil Procedure (Amendment) Act, 2000, some changes have been brought in Order XVIII, Rule 4, which relate to recording of evidence. 12. By the Code of Civil Procedure (Amendment) Act, 2000, some changes have been brought in Order XVIII, Rule 4, which relate to recording of evidence. As Sub-rules (1) and (2) of Rule 4 are of material consequence in the present case, these two sub-rules are extracted hereinbelow: (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. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule consider taking into account such relevant factor as it thinks fit. 13. From a careful reading of Order XVIII, Rules 1 and 2, what becomes clear is that the examination-in-chief of a witness - be the witness a party himself or otherwise - the examination-in-chief of every witness shall be on affidavit. The scheme for examination of a witness is governed by the Evidence Act. The Evidence Act has clearly pre scribed the manner of recording of evidence, which shows that it is the examination-in-chief which has to be, firstly, recorded and, then, the witness can be cross-examined by the other party. After such cross-examination, the provision of re-cross-examination applies and, in an appropriate case, a witness may be re-examined or further cross-examined. Ambit of such re-examination or re-cross-examination is not material in the present case. Suffice it to point out that the scheme of the Code, read with the provisions contained in the Evidence Act, shows that after the witnesses of a party to a suit are examined by the party, who begins the hearing and cross-examined by the other party that the examination-in-chief of the other party would commence. 14. Suffice it to point out that the scheme of the Code, read with the provisions contained in the Evidence Act, shows that after the witnesses of a party to a suit are examined by the party, who begins the hearing and cross-examined by the other party that the examination-in-chief of the other party would commence. 14. In the case at hand, the scheme of the Code appears to have been misconceived, for, both the parties to the suit were directed to file and have accordingly filed their examinations-in-chief on affidavit; whereas the examination-in-chief, on affidavit, ought to have been taken from the defendants after cross-examination of the plaintiffs and their witnesses were complete. When the cross-examination of the plaintiffs and their witnesses had not even started in the present case, the question of the present petitioner No. 1, as defendant in the suit, filing her examination-in-chief, on affidavit, could not have arisen at all. 15. Be that as it may, what needs to be borne in mind is that the procedural laws are devices adopted in aid of doing justice and for not defeating the ends of justice. When there is power to accept examination-in-chief of a witness on affidavit, there is no reason to hold that in the absence of any specific power given to a trial Court to accept additional examination-in-chief by way of affidavit, a trial Court is powerless, in all cases, to accept further examination-in-chief of a witness by way of additional affidavit even before cross-examination of the witness, whose examination-in-chief is filed on affidavit, has started. This does not mean, I must hasten to add, that a Court must necessary accept such an additional affidavit. The exercise of power to accept additional affidavit will depend on the facts of a given case. The amendments introduced in Order XVIII, Rule 4, are aimed at expediting the hearing of suits by making provisions for submitting examination-in-chief of a witness, on affidavit, instead of examining the witness, in the Court, so far as his examination-in-chief is concerned. Rule 4 has, therefore, introduced no other changes except that instead taking down the evidence of a witness by way of his examination-in-chief, in the Court or on Commission, his examination-in-chief shall be taken on affidavit. Rule 4 has, therefore, introduced no other changes except that instead taking down the evidence of a witness by way of his examination-in-chief, in the Court or on Commission, his examination-in-chief shall be taken on affidavit. After examination-in-chief of a witness is conducted and before his cross-examination starts, the party, who has examined the witness may seek leave of the Court for conducting further examination-in-chief of the witness. Such further examination-in-chief can, therefore, be offered by way of additional affidavit, if the facts of a given case so warrant. 16. Bearing in mind what is indicated above, when I turn to the facts of the present case, what attracts the attention is that the petitioner No. 1 had filed her additional affidavit, as indicated hereinabove before her cross-examination had started. In view of the fact that the examination of the witnesses of the plaintiffs had not even commenced, the question of taking the examination-in-chief, on affidavit or additional affidavit of the present petitioners herein, who are defendants in the suit, did not arise at all. The petition, therefore, filed by the petitioner No. 1 herein, on 25-1-2008, is a petition, which shall be taken up for consideration at the end of the cross-examination of the witnesses of the plaintiffs and before cross-examination of the petitioner No. 1 begins. 17. In the result and for the foregoing reasons, the order dated 25-1-2008, is hereby set aside and the learned trial Court is hereby directed to consider the petition filed by the petitioner No. 1 herein seeking to offer further examination-in-chief on affidavit, when the evidence to be adduced by the plaintiffs, is concluded and before the cross-examination of the petitioner No. 1 begins. With the above observations and directions, this revision petition shall stand disposed of. No order as to cost.