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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.B. SHUKRE, J.
Anita Sitaram Sawant - Petitioners
Versus
Gosar Developers - Respondents
W.P. No. 3713 of 2014
Decided on : 17-02-2017
What was mentioned in the application was that respondent No. 1-A was not keeping well and so it was not possible for her to come to the Court for facing cross-examination and that the other witness was well acquainted with the affairs of the firm and therefore it was prayed that affidavit of respondent No. 1-A be cancelled and this person, her husband `V` be allowed to be examined as a witness for the plaintiffs. Nowhere it was stated therein that he was also a person whose name did not figure in any list of witnesses filed by the plaintiffs. There was thus complete violation of the procedural requirement. This non- compliance was prejudicial to the interest of the petitioners, they having been deprived of opportunity to properly brace themselves up for their defence. Such witness could not have been permitted to tender the affidavit in lieu of examination in chief. But he was allowed to do and now his affidavit in lieu of examination-in-chief has also been taken on record. In this circumstance, what can be done at the most, is to direct ignorance of the affidavit and refusal to read it in evidence.
Evidence Act, 1872 - Section 3-Oaths Act, Sections 4(1)(a) and 8-Examination-in-chief by affidavit.-Affidavit filed by witness in lieu of her examination-in-chief, cannot be cancelled by Civil Court.
The evidence properly tendered before the Court by respondent No. 1-A could not have been canceled by the Civil Court. Since the Civil Judge has done it in the absence of any power under the law to do so, the Civil Judge has exceeded his jurisdiction and thus committed a patent illegality in passing the impugned order dated 3.10.2011, insofar as it has the effect of cancelling the affidavit filed by respondent No. 1A in lieu of her examination-in-chief.
1. Heard. Rule. Rule made returnable forthwith and heard finally by consent.
2. By this writ petition the legality and correctness of two orders passed by the Civil Judge are under challenge. The first order is of 03.10.2011 by which application vide Exh.54 has been allowed and the second order is of 16.01.2013, by which the petitioners' application vide Exh.66 has been rejected.
3. The application vide Exh.54 was filed by the contesting respondent Nos.1A and 1B, the original plaintiffs and application vide Exh.66 was filed by the petitioners, the original defendant Nos. 1, 2, 3 and 6 respectively. The respondent Nos.2 and 3 are the original defendant Nos.3 and 4. The suit has been filed for delivery of possession and mesne profits.
4. It so happened that the contesting respondent No.1A, who is a partner of plaintiff firm filed her affidavit in lieu of examination-in-chief on 15.03.2010 and it was accordingly taken on record. Thereafter on 25.08.2011, an application (Exh.54) was moved on behalf of the plaintiff firm that respondent No.1A, due to blood pressure, did not keep well and as in any case all the affairs of the firm were looked after by her husband, Vasant, it would neither be possible nor required for the respondent No.1A to appear before the Court for verification of the affidavit as well as submitting herself to cross-examination and that purpose would be served by allowing her husband Vasant to tender affidavit and face the cross-examination.
Accordingly, permission in this regard was sought. No say was filed by the petitioners – original defendants. Therefore, by order passed on 03.10.2011, the learned Civil Judge granted the application.
5. Following the grant of application vide Exh.54, Vasant-husband of respondent No.1A filed affidavit in lieu of examination-in-chief on 17.03.2011. Now it was the turn of the petitioners to come out in open to oppose the affidavit so filed by Vasant. The petitioners filed an application vide Exh.66 contending that the plaintiffs did not submit list of witnesses as required under Order XVI Rule 1 of the Civil Procedure Code nor did seek leave of the Court under Order XVI Rule 1(3) of the Civil Procedure Code to examine a person not named in the list of witnesses as their witness and thus they prayed that the affidavit in lieu of examination in chief filed by Vasant be struck off the record.
6. After hearing both the sides, learned Civil Judge, by order passed on 16.01.2013, rejected this application at Exh.66 reasoning that leave was already granted as per order passed below application at Exh.54 and in any case the plaintiffs being master of their suit, have their own choice to examine any person as a witness on their behalf. Learned Civil Judge also found that the non-compliance with the provisions of Order XVI Rule 1(3) of the Civil Procedure Code would not deter a plaintiff from examining any person, not named in the list of witnesses as a witness.
7. Let us now consider the first order dated 03.10.2011 passed below application Exh.54. This order has duel effect. Firstly, it cancels the affidavit in lieu of examination-in-chief of respondent No.1A, which is a part of her evidence and secondly it allows a person to enter the witness box as a witness of plaintiffs even though admittedly his name is not to be found in the list of witnesses of the plaintiff. Infact, there is no dispute about the fact that no list of witnesses was filed by the plaintiffs as required under Order XVI Rule 1 of the Civil Procedure Code. If no list of witnesses was filed, the question of Vasant's name appearing in any such list would not arise. So, the fact is that the person who was to be brought as a witness in place of respondent No.1A with leave of the Court was not named in any list of the witnesses.
8. Now the question is – can a Civil Court cancel evidence of any witness? The answer to the question has to be in the negative, as there is no provision of law which permits any Court to cancel t
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