Examination-in-chief cannot be considered as evidence without full cross-examination, underscoring the necessity of procedural fairness in court proceedings.

JUDGMENT :

(DEVASHIS BARUAH, J.)

Heard Mr. N. Sharma, the learned counsel appearing on behalf of the petitioner and Mr. S. Hazarika, the learned counsel who appears on behalf of the respondents.

2. The supervisory jurisdiction of this Court has been invoked challenging the order dated 29.11.2022 passed in Title Suit No.345/2015 whereby an application filed by the petitioner who is the defendant in the suit seeking expunging of the evidence of the plaintiff witness No.1 was rejected.

3. It is relevant to take note of that the respondent herein as the plaintiff had filed the suit seeking declaration as well as for recovery of compensation. The respondent admittedly is a Company incorporated under the provisions of the Companies Act, 1956. At the time of adducing evidence, the respondent submitted the examination-in-chief by way of affidavit of 7 witnesses. Relevant herein is to take note of that the plaintiff witness No.1 was an authorized representative of the plaintiff and he had submitted his examination-in-chief by way of an affidavit wherein he exhibited as many as 17 documents.

4. Pursuant to the filing of the examination-in-chief of those 7 witnesses on affidavit, the learned Trial Court endorsed the recording of the evidence to the Advocate Commissioner and the plaintiff witness No.1 was cross-examined on two dates and the further cross-examination was reserved and the suit was fixed on 27.05.2022 for further cross-examination of the plaintiff witness No.1. However, the said plaintiff witness No.1 was arrested and could not appear any further before the Commissioner for recording of his evidence. The plaintiff filed a petition for closing of the evidence of the plaintiff witness No.1. While the said petition was pending, the petitioner herein who was the defendant filed a petition bearing petition No.4331/2022 seeking expunging of the entire examination-in-chief of the plaintiff witness No.1 as well as the cross-examination, which was rejected, and under such circumstances, the present proceedings have been filed.

5. This Court has heard the learned counsels appearing on behalf of the parties and has given an anxious consideration. A conjoint reading of Rule 1, 2 & 4 of Order XVIII of the Code of Civil Procedure, 1908 (for short, ‘the Code’) stipulates that the party who has a right to begin shall file the examination-in-chief of the witness(s) on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him/her/them for evidence. It further stipulates that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders to be passed by the Court. A further perusal of Sub-Rule (2) of Order XVIII Rule 4 of the Code stipulates that 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. Therefore, it is clear that the examination-in- chief of a witness which is required to be filed by way of an affidavit cannot be treated as evidence unless the witness has been cross-examined and if necessary re-examined or opportunity has been provided to the opposite party to cross-examine the witness.

6. It is seen on record that the plaintiff witness No.1 was only partly cross-examined and thereupon the plaintiff witness No.1 did not appear. In fact, the plaintiff had also filed an application for closing the evidence of the plaintiff witness No.1 on the ground that the said witness would not be in a position to appear.

7. The above aspect clearly shows that the petitioner herein who was the defendant was no