JUDGMENT : (Prasanta Kumar Deka, J.) : Heard Mr. S. Ali, learned counsel for the petitioners. Also heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Ms. S. Katakey, learned counsel for the respondent. 2. The judgment and decree dated 17.7.2017 passed by the learned Civil Judge, Sivasagar, in Title Appeal No. 11/2013 is under challenge in this revision petition. The present petitioners as plaintiffs filed Title Suit No. 53/2001 in the Court of learned Munsiff No. 1 at Sivasagar against the present respondents as defendants for ejectment. 3. The facts of the case of the plaintiffs petitioners, in short, are that the defendants/respondents are the legal heirs of late Md. Sadullah who died on 8.2.1997. The present defendants respondents and their predecessor are tenants under the predecessor-in-interest of plaintiffs petitioners of the suit premises. The predecessor-in-interest of the defendants respondents defaulted in payment of monthly rent and as such, the predecessor in-interest of the plaintiffs petitioners instituted Title Suit No. 81/1996 for ejectment claiming arrear rent also. During the pendency of the said suit the predecessor-in-interest of the plaintiffs petitioners died resulting abatement of the suit and its consequent dismissal. A settlement was arrived at between the predecessor-in-interest of defendants respondents and present plaintiffs petitioners on the condition that the arrear rent if paid, the plaintiffs petitioners would not proceed with the Title Suit No. 81/1996. Though a part of the arrear rent was paid, however the predecessor-in-interest of the defendants respondents defaulted in payment of arrear rent for 16(sixteen) months. Continuous demands were made for clearing up the arrear rent alongwith current rent to the predecessor-in-interest of the defendants respondents. But without complying the terms of the settlement the predecessor-in-interest of defendants respondents started paying the monthly rent in the court without tendering the same to the plaintiffs petitioners. Hence the suit for ejectment. 4. The predecessor-in-interest of the defendants was the original defendant in the present suit who died and the defendants respondents were substituted and they filed the written statement. In the written statement denying the pleadings in the plaint and except admitting the tenancy since 1971, it was pleaded that there was no fixed mode of time frame for payment of the rent as the predecessor-in-interest of the plaintiffs petitioners used to collect the rent as per his convenience and used to give receipt accordingly. In the written statement denying the pleadings in the plaint and except admitting the tenancy since 1971, it was pleaded that there was no fixed mode of time frame for payment of the rent as the predecessor-in-interest of the plaintiffs petitioners used to collect the rent as per his convenience and used to give receipt accordingly. Denying the fact that no rent was paid since April, 1996, it is the stand of the defendants respondents that while the predecessor-in-interest of the plaintiffs petitioners was suffering from illness, he stopped to issue the rent receipt. The terms forming the part of the settlement was also denied. It is the defence of defendants respondent that from the month of July, 1999, the plaintiffs petitioners started demanding rent of Rs.800/-against the prevailing rate of Rs. 450/-per month and on refusal to accept the prevailing rate of Rs.450/-, the defendants respondents started depositing the same in the court. Denying the plea of bonafide requirement the defendants respondents sought for dismissal of the suit. 5. On the basis of the pleadings the learned trial court framed the following issues : “1. Whether the suit is maintainable ? 2. Whether there is cause of action for the suit? 3. Whether the defendant is defaulter? 4. Whether the suit premises is bonafide required by the plaintiff? 5. Whether the plaintiff is entitled for the decree of eviction of the defendant from the suit premises? 6. Whether the plaintiff is entitled for any other relief/reliefs?” 6. The plaintiff side adduced evidence of three witnesses and the defendants respondents adduced evidence of one witness. On the basis of the examination-in-chief in the form of evidence on affidavit filed by the witnesses of the plaintiff side the defendants respondents cross-examined the witnesses. Similarly, the witness of the defendants’ side was also cross-examined by the plaintiff side. The plaintiff side adduced evidence of three witnesses and the defendants respondents adduced evidence of one witness. On the basis of the examination-in-chief in the form of evidence on affidavit filed by the witnesses of the plaintiff side the defendants respondents cross-examined the witnesses. Similarly, the witness of the defendants’ side was also cross-examined by the plaintiff side. The learned trial Court decreed the suit as follows: “ORDER In view of my decisions reached on the issues, more particularly on issue nobs.3 & 4 of this suit, basing on the principle of preponderance of evidence, it is found that, the plaintiffs have successfully proved that, the defendants have defaulted in making payment of the monthly house rents of the suit premises and that, the suit house is banafide required by them, which caught the defendants liable to be evicted from the suit premise u/s 5(4) of the Assam Urban Areas Rent Control Act, 1972. Accordingly, with the following directions a.) That, the defendants are directed to vacate the suit premise within 90 days from today and handover the vacate possession to the plaintiffs and after restoration of possession to the plaintiffs, the defendants are restrained permanently from making any effort to disturb the possession of the plaintiffs over the suit property. b.) That, the defendants will pay the plaintiffs arrear monthly rent of the suit house @ Rs.450/- (Rupees four hundred and fifty) only from December, 1999 till they hand over vacant possession of the suit house or being evicted thereof, and c.) That, the defendants are also directed to pay the cost of the suit and the same will carry interest at the rate of 10% (six percent) per annum on and from the date of judgment till full and final realization. this suit is decreed, on contest with cost Prepare decree accordingly within fifteen days. The operative part is pronounced in the open court. This judgment is pronounced in the open Court, which is given under my hand and seal of the Court, on this 18th day of March, 2013.” 7. Being aggrieved the defendants respondents preferred Title Appeal No. 11/2013 in the Court of learned Civil Judge, Sivasagar and the same was allowed vide judgment and decree dated 17.7.2017 dismissing the suit of the plaintiffs petitioners. Being aggrieved the defendants respondents preferred Title Appeal No. 11/2013 in the Court of learned Civil Judge, Sivasagar and the same was allowed vide judgment and decree dated 17.7.2017 dismissing the suit of the plaintiffs petitioners. The learned first appellate court while passing the dismissal order considered the argument of the defendants respondents side mainly on the ground that the examination-in-chief in the form of evidence on affidavit of PW 1 and PW 2 i.e. Riyazi Begum and Md. Ashadullah were not admissible as there were no verification and no oath taken by the said witnesses in the evidence on affidavit to the effect that the statements made therein are true. Further the learned first appellate court held that the defect of absence of verification in the evidence on affidavit is not procedural defect that can be rectified rather, the evidence of PW 1 and PW 2 are totally inadmissible evidence and accordingly, set aside the judgment and decree passed by the learned trial court resulting dismissal of the suit. The first appellate court to be specific held as follows: “In the affidavits submitted by the plaintiff side, as stated earlier, there is no whisper that the statements are true. Therefore those affidavits cannot be accepted in evidence because it is not a case of defect in the verification but the total absence of verification as to truthfulness of the statement made therein. In absence of any such verification regarding truthfulness of the statements, it cannot be presumed to be true by the Court where the deponents are silent about the truthfulness of their own statements. As the affidavits (evidence-in-chief) of the PW-1 and PW-2 are inadmissible in evidence, this is a case of no evidence of the plaintiff side. Merely because the PWs were cross examined, it cannot be said that the statements are admissible in evidence. At the same time it is also not a case of mere procedural irregularity because it is not the case of defective verification, rather it is a case of total absence of verification with regard to the truthfulness of the statements made by the deponents…………………………………………………………….” As the affidavits of PWs are itself not admissible, discussion on the points of defaulter and bonafide requirement are redundant.” 8. Mr. Mr. Ali, the learned counsel for the petitioners submits that the learned first appellate court is totally wrong in discarding the evidence of the plaintiffs petitioners merely for non verification of the statements made in the evidence on affidavit. Said defect is not fatal rather it is curable. Moreover if at all the evidence on affidavit was not in the proper form, the learned court below ought to have directed the plaintiffs petitioners to rectify it by giving a time limit. It is also submitted that the approach of the first appellate court is totally uncalled for and as such, interference is necessary by this court. 9. Mr. Sahewalla the learned Senior counsel for defendants respondents on the other hand, submits that there is no error apparent in the findings of the learned court below inasmuch as, it is the requirement of the Code of Civil Procedure (CPC) under Order 19 Rule 3 that statements made in the evidence on affidavit are verified. Relying on the decision rendered in Matadin Mour Vs Prahlad Kr. Mour reported in 1998(2) GLT 193 he submits that the reasons for verification on affidavit are to enable the court to find out which fact can be said to be true on the affidavit evidence for rival parties. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. As per ratio of the said decision affidavit without proper verification is held to be inadmissible and not to be acted upon. Mr.Sahewalla also relied the case law of Rabindra Nath Chetia & another Vs Union of India and others reported in (1994)2 GLR 359. 10. I have considered the submissions of the learned counsel. “Affidavit” means a statement in writing on oath or affirmation before a person having authority to administer oath. On perusal of the judgment passed by the learned first appellate court, it is found that only because of omission of the verification supporting the statement made therein the evidence-on-affidavit as true the court came to the conclusion that evidence of PW 1 and PW 2 are inadmissible. On perusal of the judgment passed by the learned first appellate court, it is found that only because of omission of the verification supporting the statement made therein the evidence-on-affidavit as true the court came to the conclusion that evidence of PW 1 and PW 2 are inadmissible. The learned court below took note of the fact that if there is defect in the “affirmation” or “verification” the same can be cured by allowing to file affidavit at a later stage but the court below held that it was not a case of defective “verification” or “affirmation” rather the witnesses of the plaintiff side nowhere stated in the affidavit that statements made therein are true and on the other hand verification to their knowledge and belief or information regarding truthfulness of the statements were also missing. In absence of such verification the trial court presumed the statements as true though the persons making the statement are silent. 11. Order 18 Rule 4 CPC stipulates that the examination-in-chief of a witness shall be on affidavit and the copies thereof shall be supplied to the opposite party by the party who calls him for evidence. 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. 12. The terms “examination-in-chief”, “cross-examination” and “re-examination” originates from the Indian Evidence Act, 1872. Recording of evidence is a mandate of the C.P.C in order to dispose of a suit under Section 9 of CPC by concluding it in the form of the judgment and decree. “Decree” as defined under Section 2(2) CPC means formal expression of adjudication which so far as regards the court expressing it conclusively, determines the rights of the party with regard to or any of the matter in controversy in the suit. In order to pass the “decree” the court is to conclusively determine the rights of the party in respect of any matters of controversy. In order to determine such rights evidence is required. Prior to the CPC Amendment Act, 1999, Order 18 Rule 4 prescribed that the evidence of the witness in attendance ought to be taken orally in the open court in the presence of and under the personal direction and superintendence of the judge. In order to determine such rights evidence is required. Prior to the CPC Amendment Act, 1999, Order 18 Rule 4 prescribed that the evidence of the witness in attendance ought to be taken orally in the open court in the presence of and under the personal direction and superintendence of the judge. The said procedure prior to amendment was consuming substantial time in recording examination-in-chief by the judge. In order to curtail the time taken by the court by examining a witness in chief, Order 18 Rule 4 was amended requiring examination-in-chief of a witness to be on affidavit and the copy thereof shall be supplied to the opposite party by the party who calls him for adducing evidence. The cross examination thereafter of the said witness whose examination-in-chief in the form of affidavit is already filed, can be taken either by the court or by the Commissioner appointed by it. So recording of evidence is mandatory for proper adjudication of a suit for passing a “decree” which conclusively determines the rights of the parties in the suit. 13. “Facts in issue” is an expression under Section 3 of the Indian Evidence Act, 1872 which includes an issue of fact framed under Order 14 Rule 1 the CPC by any court. Issues are framed on the basis of assertion of material proposition of a fact by a party to a suit and denial of the same by the other party and the civil court is to pronounce judgment on all the issues in a suit. ”Issues” are of two kinds-(a) issue of fact and (b) issue of law. It is the “issue of fact” which requires evidence to pass judgment. Issues are framed by the court after hearing the controversies of the parties to the suit in order to ascertain the specific dispute. Once “issues” are framed the parties are aware of the requirement of the evidence to prove the facts forming the issues because the court must pass the judgment on all the issues. So in order to establish such issues evidence is required to be adduced by the parties. How in what manner a party wants to establish such issues is up to the parties and the same requires not to be pleaded in the plaint or written statement accept the material proposition of a fact. 14. So in order to establish such issues evidence is required to be adduced by the parties. How in what manner a party wants to establish such issues is up to the parties and the same requires not to be pleaded in the plaint or written statement accept the material proposition of a fact. 14. “Evidence“ as per Section 3 of the Evidence Act means and includes all statements by witness in relation to the “matter of fact” and all documents produced for inspection of the Court. “Evidence” includes both oral and documentary evidence but “affidavit” does not form evidence. “Examination-in-chief” and “cross examination” are defined under Section 137 of Indian Evidence Act, the former means the examination of a witness by the party who calls him and the latter examination of a witness by the adverse party. The very purpose of cross examination is to weaken the force of evidence which a witness deposed in his examination-in-chief. Prior to the amendment of the CPC in the year 1999 examination-in-chief means and includes the reply given by the witness against the specific question put by the Advocate for the party who called the said witness. By the mandate after amendment of the CPC, Order 18 Rule 4 allowed the said examination-in-chief within the purview of the Indian Evidence Act to be submitted in the form of an affidavit. Herein lies the difference of an affidavit under Order 19 of the CPC . The evidence on affidavit under Order 18 Rule 4 CPC speaks of the examination-in-chief which includes the facts by means of which the “fact in issue” is to be proved and there is no requirement for a direction from the court to prove a particular fact on affidavit. All questions challenging the evidence in examination-in-chief are asked in the cross-examination. There is no limit prescribed by any law that cross-examination of a witness must be confined to certain specific questions only. Mere statement of plaintiff’s witnesses in examination-in-chief cannot constitute the plaintiff’s evidence sans cross-examination, except in the case the stage of cross-examination by the adverse party is closed for any default of the adverse party. Thus the right of the defence to cross-examine the plaintiff witness cannot be termed to be a strategy of defence rather it is the requirement without which the plaintiff’s evidence cannot be acted upon. Thus the right of the defence to cross-examine the plaintiff witness cannot be termed to be a strategy of defence rather it is the requirement without which the plaintiff’s evidence cannot be acted upon. In the cross-examination the source of information of statement made by a witness in examination-in-chief can be verified. Such cross-examination amounts to the verification as required in an affidavit wherein a particular fact is directed by the court to prove by way of filing an affidavit. In the latter case only applicability of the Order 19 Rule 3 CPC comes into play. But not in the examination-in-chief within the purview of Order 18 Rule 4 CPC in the form of affidavit. 15. In order to be an examination-in-chief in the form of affidavit it must be sworn before the Oath Commissioner or notary or judicial officer or any other person competent to administer oath. The Oaths Act, 1969 empowers u/s 3 all courts and persons having by law authority to receive evidence to administer oath. Section 6 therein prescribes all such oaths and affirmations shall in case of all courts other than the Supreme Court and High Court be administered by the presiding officer of the court himself. Further u/s 7 of Oath Acts, it is stipulated that no omission to take any oath or make any affirmation shall invalidate any proceeding or render inadmissible any evidence or shall affect the obligation of a witness to state the truth. 16. The learned first appellate court took note of the fact that in the concluding part of both the affidavits of PW 1 and PW 2 it specifically mentioned that the affidavit was sworn before the Civil Sheristadar of Civil Judge, Junior Division at Sivasagar on being identified by the counsel. On perusal of the copy of the evidence on affidavit annexed to this revision petition, it is found that both the affidavits were duly sworn before Sheristadar, Civil Judge, Junior Division at Sivasagar. In Rasiklal Manikchand Dhariwal and another Vs M.S.S. Food Products reported in (2012) 2 SCC 196 , it was held by the Hon’ble Apex Court where the examination-in-chief of a witness is produced in a form of affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross examination in witness box unless the defendant’s right to cross-examine him has been closed, as such, evidence (examination-in-chief) does not cease to be legal evidence. Thus once the examination-in-chief of a witness in the form of affidavit by swearing it before the Oath Commissioner under the Oaths Act, 1969 is submitted in a court it is a judicial evidence and it is mandatory on the part of such witness to make himself available for cross-examination. Alternatively, right to face cross examination by a witness springs up immediately the examination-in-chief of said witness is submitted in the court in the form of affidavit duly sworn under the Oaths Act, 1969. The mandatory requirement of the witness to be present in the witness box from the point of view of the adverse party is to test the veracity of the statements made in the examination-in-chief in the form of an affidavit but duly sworn before the competent authority under the Oaths Act, 1969. 17. The first appellate court totally misdirected itself insisting for the verification in the affidavit. The evidence (examination-in-chief) which was filed in the form of an affidavit by PW 1 and PW 2 were at the stage of peremptory hearing wherein no direction is required by the court to prove a particular fact by way of affidavit inasmuch as the issues are already on record and the parties to the suit are supposed to lead evidence to prove the issues within the purview of the meaning of “evidence” u/s 3 of the Indian Evidence Act. Even if there is no such verification or oath in the affidavit the evidence cannot be held to be inadmissible and the same is curable as prescribed u/s 7 of the Oaths Act, 1969. “Facts in issue” in a civil case is assertion of a material proposition of a fact by one party and denial by the other. “Matter of fact” forms the evidence. Plaintiff through his pleading (plaint) claims his right on the basis of certain statements of the material proposition of facts made therein and the “matter of fact” need not be pleaded because such facts are the means to prove the “fact-in-issue” which proposition is supported by Order 6 Rule 2 CPC which mandate that evidence need not be pleaded. Plaintiff through his pleading (plaint) claims his right on the basis of certain statements of the material proposition of facts made therein and the “matter of fact” need not be pleaded because such facts are the means to prove the “fact-in-issue” which proposition is supported by Order 6 Rule 2 CPC which mandate that evidence need not be pleaded. So there may be various facts which the parties are required to prove and the court cannot ask a specific fact to be proved by affidavit when the evidence is led under Order 18 Rule 4 CPC. Moreover the statements in pleadings are the source for evidence to be introduced by a party to a suit and not beyond the said source. 18. Mr. Sahewalla relies on Matadin Mour Vs Prahlad Kr. Mour reported in 1998(2) GLT 193 (supra). The judgment was passed by the Hon’ble Division Bench of our High Court in an appeal under Order 43 Rule 1 (d) CPC against an order rejecting an application under Order 9 Rule 13 CPC. Therein an issue was brought to the notice of the Hon’ble Division Bench with regard to the manipulation of the records of the register of certified copies in the custody of Court of learned District Judge, Kamrup. The said dispute was raised by the respondent in the said appeal alleging the purported manipulation of the records by the appellant in order to save himself from the affect of Limitation Act, 1963. Against the said allegation an affidavit was sworn by the appellant refuting the claim of the respondent therein. The verification therein was not satisfactory to the Hon’ble Division Bench and held that the same did not conform to the bare minimum requirements as prescribed under Order 19 Rule 3 of CPC. The said ratio is not applicable in the present case in hand inasmuch as the evidence on affidavit was filed during the peremptory hearing of the suit and the said affidavit forms the part of the examination-in-chief during the trial. 19. Mr. Sahewalla further relies on Rabindra Nath Chetia Vs. Union of India and others reported in 1994(2) GLR 359. The said ratio is not applicable in the present case in hand inasmuch as the evidence on affidavit was filed during the peremptory hearing of the suit and the said affidavit forms the part of the examination-in-chief during the trial. 19. Mr. Sahewalla further relies on Rabindra Nath Chetia Vs. Union of India and others reported in 1994(2) GLR 359. The said decision was also rendered by Hon’ble Division Bench of this Hon’ble High Court in a writ petition wherein against the allegation of killing of one Krishna Chetia by firing without authority of law an enquiry was directed to be conducted by the Assistant District and Sessions Judge. By filing the said writ petition compensation was claimed. An affidavit-in-opposition was filed by the respondents. Therein the said affidavit, some of the statements were supported by the respondent to be true to the knowledge of the deponent and some of the statement were matters of record and the information derived therefrom. No records were produced nor any one was present before the court. The Hon’ble Division Bench held that the affidavit cannot be deemed to be an affidavit in the eye of law. Verification in the affidavit is required to find out by a court which facts can be said to be proved on affidavit on evidence of rival parties. This decision also does not help the respondent. 20. The suit is not a supplemental proceeding u/s 94 of the CPC as such there is no applicability of Order 19 of CPC. The learned first appellate court misdirected itself and wrongly held that the evidence of PW 1 and PW 2 are inadmissible. From the aforesaid discussion I am inclined to allow this revision petition by setting aside the impugned judgment and decree passed by the learned Civil Judge, Sivasagar and remand the same to the first appellate court to decide afresh Title Appeal No. 11/2013 on the basis of the evidence on record, in terms of Order 41 Rule 31 CPC. 21. The parties to this appeal shall appear before the said appellate court at Sivasagar on 28.3.2019 and thereafter the court below shall dispose of the appeal by passing a fresh judgment within a period of one month from the date of appearance.