The main legal point established in the judgment is the requirement for the affiant to enter the witness box and testify the contents of the affidavit, as well as the permissibility of examination-in-chief through an affidavit without the mandatory appearance of the affiant in the witness box.

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.

4. The petitioner is aggrieved by the order dated 5.12.2015, by which, his application Exhibit 17 seeking leave to withdraw the affidavit filed in lieu of examination-in-chief or discard the said affidavit, was rejected.

5. I have considered the strenuous submissions of the learned Advocates for the respective sides.

6. There is no dispute that the petitioner had tendered his affidavit in lieu of examination-in-chief on 4.11.2015. Copy of the same was supplied to the defendants. However, before the cross-examination could begin, he filed an application Exhibit 17 on 18.11.2015, stating that owing to a typographical error on Page No.3 at paragraph No.(C), it is wrongly stated that the plaintiff admits certain documents, which were favouring the defendants. It was canvassed that paragraph No.(C) is out of inadvertence and a typing mistake and hence the plaintiff be permitted to withdraw the said affidavit.

7. By the impugned order, the trial Court concluded on the basis of the view taken by this Court in Banganga Cooperative Housing Society Vs. Vasanti Gajanan Nerurkar and others [2015 (5) Bom. C.R. 813], that the affidavit cannot be withdrawn as it has become a part of the record.

8. Issue is, as to whether, the affidavit filed in Court and prior to the verification of the plaintiff would amount to being an oral evidence and whether it would be a part of the record. If not, whether it could be withdrawn.

9. This Court in the matter of Bank of India Vs. M/s Allibhoy [AIR 2008 Bom. 81], has concluded in paragraph Nos. 19 to 21 as under:-

“19. Now, the second question is: Can affidavits in support claim to be read as evidence? The legal position is that the affiants, filing an affidavit, are required to appear before the Court. They are required to enter the witness box to testify the contents of their respective affidavits as laid down by this Court in the case of F.D.C. Ltd. v. Federation of Medical Representatives Association India (FMRAI) and Ors., AIR 2003 Bom 371. The relevant extract of the said judgment is reproduced herein below for immediate reference.

(A) Civil P.C. (5 of 1908), Order 18, Rule 4, examination-in-chief in each and every case is permitted in form of affidavit taking affidavit on record procedure to be followed in appealable cases is prescribed in Rule 5 in non-appealable cases procedure under Rule 13 is to be followed. In other words, in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under R5. (Emphasis supplied)

20. The above judgment is approved by the Apex Court in the case of Ameer Trading Corporation v. Shapoorji Data Processing Ltd., AIR 2004 SC 355.

21. In the above view of the matter, since none of the affiants have entered the witness box, the said affidavits cannot form part of evidence. Thus, they cannot be read in evidence.”

10. It is thus apparent that this Court has taken a view that an affiant is necessarily required to enter the witness box and testify the contents of the affidavit after which, it would get converted into a record of the Court to be read in evidence.

11. However, the Honourable Supreme Court, in Rasiklal Manikchand Dhariwal Vs. M.S.S. Ford Products [(2012) 2 SCC 196], has held that in paragraph Nos. 76, 77 and 78 as under:-

"76. The prejudice principle was accordingly applied and the Court said that: (Ammer Trading Corpn. Ltd. case (2004) 1 SCC 702)

“33. .......the Defendant would not be prejudiced in any manner whatsoever if the examination