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2020 DIGILAW 122 (JHR)

Om Prakash Agarwal v. Sudha Agarwal

2020-01-18

ANUBHA RAWAT CHOUDHARY

body2020
JUDGMENT : I.A. No. 10594 of 2019 1. Heard Mr. L.K. Lal, learned counsel along with Mr. Pradipto Mitra, learned counsel appearing on behalf of the plaintiff. 2. Heard Mr. Kundan Kr. Ambastha, learned counsel along with Mr. Anurag Chandra, learned counsel appearing on behalf of the defendant. 3. Learned counsel for the plaintiff submits that this interlocutory application has been filed under Section 151 of Code of Civil Procedure by the plaintiff seeking leave to replace the Evidence-in-Chief on affidavit of the applicant witness no.1 filed on 28.10.2016 by the corrected copy of Evidence-in-Chief on affidavit of applicant witness no. 1 filed on 18.11.2019. 4. The learned counsel further submits that due to inadvertence and bona fide mistake, some typographical errors have occurred in para 2, 9 and 13 of the Evidence-in-Chief on affidavit of the applicant witness no. 1 in mentioning the date of death of Dayanand Lal Agarwal, the exhibit number of the Will marked by learned Sub-Judge - I, Lohardaga in Partition Suit No. 08 of 2000 and the number of L.A. cases. He further submits that the aforesaid mistakes in the aforesaid paragraphs of Evidence-in-Chief on affidavit of applicant witness no. 1 filed on 28.10.2016 could not be detected due to oversight and the same are typographical/clerical mistakes. He further submits that the corrections which are sought to be incorporated by filing fresh Evidence-in-Chief on affidavit of witness no. 1, which has been filed on 18.11.2019, are verifiable from the materials available on record and cannot be disputed by the defendant. 5. The learned counsel for the plaintiff has relied upon a judgment passed by the Hon’ble Andhra Pradesh High Court in the case of “Sri Mohammed Abdul Ahmad Vs. Sri Mohammed Abdul Gafoor @ Ahmed and another” reported in 2013 AIR CC 745 (AP). He submits that merely Evidence-in-Chief on affidavit has been filed on 28.10.2016, but the same has not yet been taken on record, in as much as, no exhibit has been marked so far and witness no. 1 has not yet appeared for the purposes of his cross-examination. He submits that confirmation or denial of the contents of the affidavit of the Evidence-in-Chief of witness no. 1 has not yet been recorded. 6. 1 has not yet appeared for the purposes of his cross-examination. He submits that confirmation or denial of the contents of the affidavit of the Evidence-in-Chief of witness no. 1 has not yet been recorded. 6. The learned counsel for the plaintiff submits that in the aforesaid judgment passed by the Hon’ble Andhra Pradesh High Court, it has been held by referring to Full Bench judgment rendered by the same Court that an affidavit is merely an affidavit when it is filed in court and when a witness appears for cross-examination, it is necessary for the witness either to confirm or differ with the contents of the affidavit and after his confirmation or denial of the contents of affidavit, whatever recorded is the evidence. It has been further held that if the witness confirms an affidavit, the affidavit would become part of the statement made by the deponent before the Court. The learned counsel further submits that it has been held that therefore, what is finally taken as evidence by the Court is not the affidavit, but what is contained in the affidavit, if confirmed by the deponent when he appears before the court for cross-examination. Accordingly, he submits that the Evidence-in-Chief on affidavit which was filed on 28.10.2016 having not yet been taken on record and not yet become a part of evidence of witness no. 1, therefore considering the typographical errors which can be substantiated from the documents, the subsequent Evidence-in-Chief on affidavit filed on 18.11.2019 rectifying such typographical/clerical errors may be permitted to replace the earlier Evidence-in-Chief on affidavit of witness no. 1 filed on 28.10.2016. 7. The learned counsel appearing on behalf of the defendant, on the other hand, while opposing the prayer submits that vide order dated 14.06.2019, it is apparent that it has been recorded by this Court that examination-in-chief of witness nos. 1 and 2 has already been filed and they were to be produced for cross-examination on 05.07.2019. He submits that in such circumstances, it cannot be said that the Evidence-in-Chief on affidavit of witness no. 1 has not yet been taken on record. However, he could not dispute the fact that witness no. 1 has not yet appeared before this Court for confirmation of his Evidence-in-Chief on affidavit and for cross-examination by the defendant. 8. He submits that in such circumstances, it cannot be said that the Evidence-in-Chief on affidavit of witness no. 1 has not yet been taken on record. However, he could not dispute the fact that witness no. 1 has not yet appeared before this Court for confirmation of his Evidence-in-Chief on affidavit and for cross-examination by the defendant. 8. The learned counsel for the defendant further submits that the judgment which has been relied upon by the plaintiff is, in fact, in his favour and he refers to the last three paragraphs of the said judgment to submit that it has been held by the Hon’ble Andhra Pradesh High Court that once the affidavit becomes part of record, the party who files it loses the right or prerogative to change or alter it and for all practical purposes, it is a chief examination recorded and certified by the court itself. 9. In response, the learned counsel for the plaintiff submits that so far as the facts of the case in judgment passed by the Hon’ble Andhra Pradesh High Court (Supra) is concerned, it is reflected from the initial paragraph itself that an affidavit for chief-examination was filed and on the basis of its content, exhibits were marked by the court. He submits that in the instant case, no such exhibit has been marked and rather, the witness no. 1 has to appear for the purposes of confirmation of the statement and then the exhibit would be marked by this Court. Thereafter, he may be cross-examined and such stage is yet to arrive. 10. After hearing the counsel for the parties, this Court finds that the Evidence-in-Chief on affidavit has been filed on behalf of the witness no. 1 by the plaintiff on 28.10.2016 and although there is an order by which the witness no. 1 is required to present himself for the purposes of cross-examination, but the fact remains that the witness no. 1 has not appeared before this Court, and accordingly he has neither confirmed his Evidence-in-Chief on affidavit nor any of the documents have been marked as exhibit nor he has been cross-examined. 11. This Court finds that the learned counsel for the plaintiff has relied upon the judgment passed by Hon’ble Andhra Pradesh High Court in the case of “Sri Mohammed Abdul Ahmad Vs. 11. This Court finds that the learned counsel for the plaintiff has relied upon the judgment passed by Hon’ble Andhra Pradesh High Court in the case of “Sri Mohammed Abdul Ahmad Vs. Sri Mohammed Abdul Gafoor @ Ahmed and another” reported in 2013 AIR CC 745 (AP). Relevant portion of the said judgment is quoted as under: “The question as to when an affidavit filed, in lieu of chief-examination would form part of record, was dealt with by a Full Bench of this Court in RITA PANDIT v. ATUL PANDIT. The judgments of the Supreme Court in SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA and AMEER TRADING CORPORATION LTD., v. SHAPOORJI DATA PROCESSING Ltd., apart from the judgments rendered by the High Courts of Kerala and Bombay, were discussed at length. The Full Bench summed up its observations in paragraph 24, as under: “An affidavit is merely an affidavit when it is filed in the Court. But when a witness appears for cross-examination, it is necessary for the witness either to confirm or differ with the contents of the affidavit. After his confirmation or denial of the contents of affidavit, whatever recorded is the evidence and if the witness confirms the affidavit, the affidavit would become part of the statement made by the deponent before the Court. Therefore what is finally taken as evidence by the Court is not the affidavit, but what is contained in the affidavit, if confirmed by the deponent when he appears before the Court for cross-examination.….” 12. Considering the ratio of the judgment passed by the Hon’ble Andhra Pradesh High Court, this Court is also of the considered view that the Evidence-in-Chief on affidavit can be said to have been taken on record only when the concerned witness appears before the court for the purposes of confirmation of his Evidence-in-Chief on affidavit and exhibit, if any, is marked. Unless this stage comes, the Evidence-in-Chief on affidavit merely remains an affidavit and cannot be said to have been taken on record. 13. Unless this stage comes, the Evidence-in-Chief on affidavit merely remains an affidavit and cannot be said to have been taken on record. 13. This Court further finds that it is the specific case of the plaintiff that the error had crept up in Evidence-in-Chief on affidavit filed on 28.10.2016 with regard to certain dates as mentioned above and which are said to be supported by documents and is sought to be rectified by filing fresh Evidence-in-Chief on affidavit dated 18.11.2019 and there is no such dispute in connection with this argument of the plaintiff. Accordingly, this Court is of the considered view that the Evidence-in-Chief on affidavit filed on 28.10.2016, having not yet been taken on record, is to be replaced pursuant to the present interlocutory application and the corrected Evidence-in-Chief on affidavit of the applicant witness no. 1 filed on 18.11.2019 be considered for the ends of justice. Accordingly, the I.A. No. 10594 of 2019 is hereby allowed and the corrected Evidence-in-Chief on affidavit of the applicant witness no. 1 filed on 18.11.2019 will be considered in place of Evidence-in-Chief on affidavit filed on 28.10.2016. 14. The plaintiff is directed to produce witnesses for the purposes of their cross-examination on the next date. 15. Put up this case on 31.01.2020 under appropriate heading.