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2015 DIGILAW 537 (MP)

Kalu Singh v. Nirmala

2015-05-06

PRAKASH SHRIVASTAVA

body2015
ORDER 1. This writ petition under Article 227 of the Constitution of India is at the instance of the defendants in the suit challenging the order of the trial Court dated 29.9.2014, whereby the trial Court has permitted the respondents/plaintiffs to exhibit the affidavits as documents. 2. Learned counsel appearing for the petitioners submits that affidavits are not documents and they are not covered by the Evidence Act therefore, the respondents cannot be permitted to exhibit the same as documents. 3. As against this counsel for respondents has submitted that these affidavits have evidentiary value therefore, they have rightly been allowed to be exhibited. 4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that section 1 of Evidence Act, excludes the applicability of the Act to the affidavits presented to any Court. section 1 reads as under : “1. Short title, extent and commencement. - This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India [except the State of Jammu and Kashmir] and applies to all judicial proceedings in or before any Court, including Courts-martial, [other than Court-martial convened under the Army Act,] (44 and 45 Vict. c.58) [the Naval Discipline Act (29 and 30 Vict., c.109) of the Indian navy (Discipline) Act, 1934 (34 of 1934) [or the Air Force Act] (7Geo.5c 51) but not to affidavits presented to any Court or Officer, not to proceedings before an arbitrator. And it shall come into force on the first day of September, 1872.” 5. Evidence has been defined under section 3 of Act to include all oral and documentary evidence. section 1 read with section 3 of the Act makes it clear that affidavit is not considered to be evidence under the Act. (See : Gopikabai and others v. Narayan and others, reported in AIR 1953 Nagpur 135). Under Order 19 rule 1 of CPC, the Court has power to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, therefore, unless the Court passes an order under Order 19 Rule 1 CPC, the affidavit cannot be taken as evidence. Under Order 19 rule 1 of CPC, the Court has power to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, therefore, unless the Court passes an order under Order 19 Rule 1 CPC, the affidavit cannot be taken as evidence. Even in the case under Order 19 rule 2 the cross examination of the deponent is permitted and under Order 19 rule 3 such affidavits are confined to be specified facts. Nagpur High Court in that matter of Gopikabai (supra), has held that Evidence Act is not a fragmentary enactment but a consolidatory one and if affidavit is not evidence under the Act it cannot be taken as evidence unless it is permitted by Order 19 of CPC. 6. The above view is supported by the judgment of the Supreme Court in the matter of Sudha Devi v. M.P. Narayanan, reported in (1988)3 SCC 366 , wherein it has been held that affidavits are not included in the definition of evidence in section 3 of the Act and can be used as evidence only if for sufficient reason Court passes an order under Order 19 rule 1 or 2 CPC. Supreme Court in the matter of Chhotan Prasad Singh Suchan Devi v. Hari Dusadh, Bihari Manjhi, reported in (1977)1 SCC 102 , referring to section 3(3) of the general clauses Act has held that the affidavits sworn or affirmed before the Magistrate who are not in sesin of the case are inadmissible in evidence. 7. The Division Bench of Assam High Court in the matter of Niranjan Lal Ratankumar v. River Steam Navigation Co. Ltd. and another, reported in AIR 1967, Assam and Nagaland 74 has expressed that the contents of the affidavit cannot be taken in evidence and affidavit of a person not produced for examination in Court is no evidence. 8. 7. The Division Bench of Assam High Court in the matter of Niranjan Lal Ratankumar v. River Steam Navigation Co. Ltd. and another, reported in AIR 1967, Assam and Nagaland 74 has expressed that the contents of the affidavit cannot be taken in evidence and affidavit of a person not produced for examination in Court is no evidence. 8. In the present case though the trial Court has noted that the affidavits are proposed to be filed by respondents as documents still it has allowed the same referring to Order 18 rule 4 CPC without appreciating that under Order 18 rule 4 CPC the examinator-in-chief of the witness is on affidavit and there is right to cross examine the person swearing the affidavit but in the present case respondents had tried to file the affidavits not as examination-in-chief of the witness under Order 18 rule 4 but as documents. 9. Thus, the trial Court has committed clear error of law in permitting exhibition of affidavits as documents. Hence the impugned order of the trial Court cannot be sustained and is hereby set aside.