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2016 DIGILAW 564 (ORI)

Smt. Swarnalata Malik v. Sridhara Mallik

2016-07-27

S.N.PRASAD, VINOD PRASAD

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JUDGMENT : S. N. Prasad, J. This appeal has been preferred by the wife, the appellant against the judgment passed in C.P. Case No.931 of 2010 by the Judge, Family Court, Cuttack. 2. The brief facts of the case is that the appellant has solemnized marriage with the respondent on 10.6.2003 as per Hindu rites and custom and they have led their conjugal life without any disturbance for a period of seven years. But thereafter due to some disturbances a C.P. Case has been filed for dissolving the marriage U/s.13 of the Hindu Marriage Act, 1955. The Judge, Family Court has passed ex-parte decree of divorce vide judgment delivered on 29.6.2011. 3. The sole ground taken by the appellant is that no opportunity has been provided to her since on summon she had appeared on 18.5.2011, the next date was fixed on 26.6.2011 and thereafter the date was deferred after three days and fixed on 29.6.2011 and on that very date the case has been posted for ex-parte order and subsequently the impugned judgment, since been passed only on the basis of an affidavit which has been treated as an evidence, is nullity in the eye of law. 4. The respondent while on the other hand has defended the judgment impugned and has submitted that ample opportunity was given to the appellant but she failed to appear and thereafter the learned trial court has passed the judgment on the basis of the affidavit which has been taken as an affidavit and the same has been corroborated by the respondent, hence there is no infirmity. 5. After having heard learned counsels for the parties and after going through the records of this case it is evident that a notice has been issued to the appellant, she appeared on 18.5.2011, the case was posted on 26.6.2011, deferred for 29.6.2011 and on that date the case was posted for ex-parte hearing. From perusal of the order impugned it is evident that the trial court has passed the judgment merely on the basis of affidavit which has been taken as evidence. In this factual background the rival submission of the parties is to be examined and for that it needs to refer the legal proposition. Affidavit is not an evidence as would be evident from the definition of “Evidence” as provided U/s.3 of the Indian Evidence Act which is being reproduced herein below:- “3. In this factual background the rival submission of the parties is to be examined and for that it needs to refer the legal proposition. Affidavit is not an evidence as would be evident from the definition of “Evidence” as provided U/s.3 of the Indian Evidence Act which is being reproduced herein below:- “3. Interpretation clause.- In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:- xxxxxx xxxxx xxxxxx “Evidence”.- “Evidence” means and includes- (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) All documents including electronic records produced for the inspection of the court, such documents are called documentary evidence.” Further from perusal of the provision as contained in Sec.1 of the Indian Evidence Act, 1872 it would be evident that affidavits have been expressly excluded from the applicability of Indian Evidence Act, the relevant provision is being quoted herein below:- “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- material, other than Courts-material convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; And it shall come into force on the first day of September, 1872.” There is no dispute about the fact that the application filed under the provision of Hindu Marriage Act is also to be tried on the basis of the procedure to be regulated by the Code of Civil Procedure 1908 as would be evident from Sec.21 of the Hindu Marriage Act. Hence it is necessary to refer Order 18 of CPC which relates to hearing of the suit and examination of witnesses which is being reproduced herein below: “ORDER-XVIII-HEARING OF THE SUIT AND EXAMINATION OF WITNESSEES Rule 1. Hence it is necessary to refer Order 18 of CPC which relates to hearing of the suit and examination of witnesses which is being reproduced herein below: “ORDER-XVIII-HEARING OF THE SUIT AND EXAMINATION OF WITNESSEES Rule 1. Right to begin.- The plaintiff has the right to being 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 which case the defendant has the right to begin. 2. Statement and production of evidence.-(1) On the day 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. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case………..” Thus Order 18 Rule 1 provides that the plaintiff will have a right to begin a case unless the defendant admits the facts alleged by the plaintiff. The next stage is Rule 2 of Order 18. The party having a right to begin shall state his case and produce his evidence in support of the issue which he is bound to prove. Thus Rule 2 provides that even in ex-parte cases the plaintiff has to produce the evidence to prove his case. Then comes Order XIX which empowers the trial court to allow evidence to be given by affidavits. The provision of Order 19 of the CPC is being reproduced herein below:- “ORDER XIX- AFFIDAVITS 1. Thus Rule 2 provides that even in ex-parte cases the plaintiff has to produce the evidence to prove his case. Then comes Order XIX which empowers the trial court to allow evidence to be given by affidavits. The provision of Order 19 of the CPC is being reproduced herein below:- “ORDER XIX- AFFIDAVITS 1. Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reason 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, on such conditions as the Court thinks reasonable; Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. COMMENTS (I) In terms of Order XIX, rule 1 the Court may at any stage permit a party to adduce evidence by affidavit on assigning sufficient or cogent reasons. This clearly demonstrate that the Court allowing adducing the evidence by affidavit must apply its mind before such permission is granted to a party to the lis; (II) Affidavits are not included in definition of “evidence”- Held, plaintiff cannot be allowed to fill up lacuna belated at the Supreme Court stage; 2. Power to order attendance of deponent for cross-examination…………..” Thus Order XIX Rule 1 CPC provides that any court may at any time for sufficient reason 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, on such conditions as the Court thinks reasonable. Thus under order XIX Rule 1 the condition precedent is that the Court must permit the person who wants to produce affidavit of the witnesses as evidence. Court can only permit where there are sufficient grounds for its satisfaction to do so. In the ordinary course an affidavit cannot be used as evidence to prove a particular fact. It can only be used as an admission of a party under Sections 18 to 21 of the Evidence Act can be used against the party making such admission. Court can only permit where there are sufficient grounds for its satisfaction to do so. In the ordinary course an affidavit cannot be used as evidence to prove a particular fact. It can only be used as an admission of a party under Sections 18 to 21 of the Evidence Act can be used against the party making such admission. But it cannot be read as evidence and affidavit cannot be treated as evidence under Section 3 of the Evidence Act unless the court permits the production of the affidavit. This has been decided and settled in case of Smt. Sudha Devi Vrs. M.P. Narayanan & Ors, AIR, 1988 SC 1381 wherein their Lordships have been pleased to hold that the affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reasons the court passes an order under Order XIX Rule 1 and 2 C.P.C. The relevant paragraph is being reproduced herein below: “3. Affidavits Are not included in the definition of ‘evidence’ in S.3 of the Evidence Act and can be used as evidence only if for sufficient reasons Court passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure. The plaintiff-appellant cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage.” Yet another judgment rendered by Hon’ble Apex Court in the case of Salem Advocate Bar Association, T.N. Vrs. Union of India, 2005 6 SCC 344 has made this fact clear that an affidavit would not be evidence for the purpose of trial. In the light of this legal proposition now the order passed by the trial judge is to be examined, and from its perusal it is evident that the trial judge has passed the decree of divorce merely on the basis of affidavit treating the same as evidence, the relevant portion of the judgment is being reproduced herein below: “3. Petitioner filed affidavit evidence. In it he supported his own case. No contrary material came from O.P. Therefore, the petition would succeed. Petitioner filed affidavit evidence. In it he supported his own case. No contrary material came from O.P. Therefore, the petition would succeed. Hence ordered……..” Thus it is evident from the impugned judgment that the trial judge has taken into consideration the affidavit as an evidence and the contents thereof and as such the provision of CPC as provided under Order 18 Rule 2 wherein it provides that the party is bound to prove but even the content of the affidavit has not been proved. There is no dispute regarding the legal proposition that affidavit can be used as evidence but there must be specific order to be passed by the trial judge under Order XIX Rule 1 but no such order has been passed as would be evident from the record. In view thereof the judgment impugned is not sustainable, hence set aside. In consequence the matter is remitted before the trial judge for fresh trial after providing an opportunity of being heard to the parties as per the procedure laid down in the Code of Civil Procedure. Accordingly, the appeal is disposed of.