( 1 ) THIS Criminal Revision is directed against the order of the sub-Divisional Magistrate, Gadag, in a case under S. 145 of the Crlpc. The petitioner constituted Party I, while the respondent-1 constituted Party II and it was stated that there was a dispute as to possession between them, in respect of Survey Nos. 323/2, 324/1 and 325/1 of Savadi village in Ron Tk. The police report was submitted to the Magistrate on 6-3-1975 which referred to that dispute and there was an allegation that the parties were likely to commit breach of the peace. Accordingly, the learned magistrate passed the preliminary order and directed both the parties to adduce evidence by affidavit. Subsequently, that evidence was considered and party II was held to be entitled to possession. Party I felt aggrieved of that order and preferred the present revision.

( 2 ) THE main contention of the learned Counsel for the petitioner, is that the evidence by affidavits could not be adduced in view of S. 145 of the Crlpc, 1973. In the previous Code, no doubt the provision was that evidence was only admissible by written statement, documents and affidavits. As such affidavits were admissible and the Magistrate could decide regarding possession on the basis of such evidence by affidavits. In the new Code, under S. 145 (4) the language used is "receive all such evidence as may be produced by them" and the language used in the previous Code, namely, "statemerits, documents and affidavits, if any so put in" is no longer to be found there. The learned Counsel contends upon that, that evidence by affidavits cannot be adduced. In tha,t connection reference was made to Ss. 295 and 296 of the Crlpc, 1973. It is specifically provided for in S. 295 ,that affidavits in proof of conduct of public servants can be given. Similarly, under S. 296 of the Crlpc, 1973, evidence of any person whose evidence is of a formal character may be given by affidavit. In other words, besides, the two categories of evidence as specified in ss. 295 and 296, no other evidence can be Adduced by affidavit. The evidence adduced in this case can by no means be considered as evidence of a person which is of a formal character. The said persons have given statements about the respective possession. As such the evidence was not of a formal character and S. 296 of the Crlpc will be of no help.

( 3 ) THE learned Counsel also referred to B. N. Munibasappa v. Gurusiddaraja Desikendra Swamigal, 1956 Myslj 71. That was, no doubt a case arising under Order 19, Rules 1 and 2 of the CPC. The learned Judge however, observed that an affidavit can never take the place of an evidence recorded in the ordinary way, unless the case is one to which provisions of rules 1 and 2 of Order 19 of the CPC applied or the affidavit related to a matter in regard to which the Court has been expressly permitted to act upon of affidavit. This express permission by the Court is inherent in rule 1 of Order 19 of the CPC. Applying this principle with reference to ss. 295 and 296 of the new Code of the Crlpc, unless the evidence is of a formal character in the instant case, and S. 296 of the Crlpc applied to such evidence affidavits could not be availed of. It is not a case in which any express permission of the Court was taken to file an affidavit. Section 145 (4) of the Crlpc did not provide for giving the evidence upon affidavit.

( 4 ) IN this view of the matter, the learned Magistrate relied upon evidence which could not be read and no decision could be arrived at on the basis of such evidence. The Revision is therefore allowed and the order of the learned Magistrate is set aside. The case is remanded to the learned Magistrate to enable the parties to adduce evidence in accordance with law. Thereafter, he has to decide the dispute on merits.

--- *** ---

.

Click Here to Read the rest of this document