Point of Law : Affidavit in lieu of examination-in-chief is constrained by two factors: (a) it must be examination-in-chief; and (b) it must be an affidavit conforming to requirement of Indian Evidence Act and provisions of Order 19 Rule 3 CPC.

ORDER :

Mohammad Rafiq, J.

1. This petition has been filed by plaintiffs/petitioners assailing the order dated 2.8.2019, passed by the learned Civil Judge Court No. 3, Shimla in case No. 172-1 of 18/15, titled Ashok Sood and another versus Roshan lal Bhardwaj whereby their objection to the admissibility of the affidavit of the defendant Roshan lal Bhardwaj, has been rejected.

2. The facts of the case, as emerging from the pleadings, are that the defendant/respondent was a tenant of the plaintiffs/petitioners in the first floor of Irwin Lodge and its Annexe as well as one room in the ground floor thereof. The plaintiffs/petitioners succeeded in obtaining eviction order against him in Rent petition No. 47/2 of 2010/08 from the Rent Controller No. 1 on 30.6.2011. The defendant/tenant challenged the aforesaid order in Rent Appeal No. 40-S/14 of 2011 in which an interim order was passed on 3.7.2013 whereby operation of the eviction order was stayed subject to the respondent paying use and occupation charges @ Rs. 6000/- per mensem. Since the defendant/respondent did not comply with the aforementioned order, the plaintiffs/petitioners filed Execution Petition No. 17-10 of 2011 before the Rent Controller No. 1 Shimla, who issued the warrant of possession qua the tenanted premises in their favour and against the defendant/respondent. The Executing Court passed an order dated 27.7.2013 against the defendant/respondent dismissing his objection ordering issuance of warrant of possession. The defendant/respondent filed a Civil Revision Petition No. 4034 of 2013 against the aforesaid order dated 27.7.2013 before this Court, which was dismissed vide order dated 4.10.2013. The defendant/respondent unsuccessfully challenged the aforesaid order before the Supreme Court in SLP (C) No. 36864 of 2013 which, too, was dismissed in limine vide order dated 13.1.2014. While dismissing the SLP, the Supreme Court directed the defendant/tenant to deposit arrears in the account of the petitioners within two months from the date of passing the order. It was in this background that the plaintiffs filed the suit for recovery of the amount of arrears and interest due from the respondent. The issues in the suit were framed on 13.10.2015. Thereafter the plaintiffs/petitioners led evidence in that case. After recording the evidence of the plaintiffs, the matter was fixed for the evidence of the defendant/respondent on 1.6.2017 onwards. The defendant/respondent examined one Shri Uma Shankar who produced the record pertaining to the petitions filed before this Court.

3. I have heard the learned counsel for the parties and have gone through the entire material on record.

4. Mr. Sanjay Kumar Verma, the learned counsel for the petitioners contended that despite several opportunities granted to the defendant, he failed to produce his evidence and therefore, counsel for the plaintiffs requested the trial Court to close the right of the defendant to adduce evidence. The trial Court however fixed 5.3.2018 as the date for the respondent to produce his remaining evidence. Thereafter the matter was transferred to the learned Civil Judge Court No. 3 on 3.5.2018, who granted further opportunities to the defendant on 17.5.2018, 4.7.2018 and 28.8.2018. It was thereafter the learned Court below on 28.5.2019 directed that non-official witnesses shall be produced by the defendant/respondent on his own responsibility on 2.8.2019. The defendant/respondent then produced one official witness Sh. Vinod Kumar who has produced the record of the execution proceedings. Apart from that, the defendant/respondent filed his own affidavit by way of examination-in-chief. The objection was taken by the plaintiffs/petitioners qua the admissibility of the aforesaid affidavit contending that it was nothing but a complete reproduction of the written statement filed by the defendant/respondent. In fact, it was cut, copy and paste of the written statement and therefore, violative of the provisions as contai