JUDGMENT :

Janak Raj Kotwal, J.

1. Rule-4 of Order XVIII Code of the Civil Procedure, Svt. 1977 (CPC) as substituted by the Civil Laws (Amendment) Act, 2009 (Act VI of 2009), provides that in civil cases examination-in-chief of the witnesses shall be on their affidavits, copies whereof shall be supplied to the opposite party and cross and re-examination shall be recorded either by the court or by the commissioner appointed by the court. The issue raised in this petition under section 104 CPC read with Article 227 of the Constitution of India filed by the defendants involves a situation where a witness, whose examination-in-chief has been tendered on affidavit, dies before he could be produced before the court for cross-examination. A few facts leading to the situation, as it has arisen, are that in the suit filed by the plaintiffs, herein respondents, in the court of Munsiff, Billawar against the defendants, herein petitioners, the defendants tendered examination-in-chief of their witnesses on their sworn affidavits. Plaintiffs' evidence was closed on 19.03.2016 and thereafter commenced the cross-examination of the defendants' witnesses. Two witnesses of the defendants, namely, Ratan Chand S/o. Balak Ram and Ratan Chand S/o. Timbo Ram, however died on 29.10.2016 and 28.12.2016 respectively, before their cross-examination was recorded in the court. Defendants' counsel moved an application in file No. 60/civil misc. seeking permission to prove the affidavits tendered by these two witnesses in terms of section 33 of the Evidence Act, though by a subsequent application, they sought the application to be treated as one for permission to prove the affidavits in terms of section 32 of the said Act. In the course of arguments before the learned trial court, counsel for the defendants also tried to draw support from section 65 of the Evidence Act and submitted that section 65 clearly provides that document can be proved by secondary evidence.

2. While dealing with the aforementioned application, the learned trial court framed propositions as to whether "affidavit is evidence under the provision of law", whether "examination-in-chief of the witness shall covered under the definition of statement or document" and whether "affidavit of deceased person not cross examined by other side is admissible under law" and dismissed the application vide order dated 12.08.2017, which is impugned in this petition filed by the defendants.

3. Learned trial court held, firstly, that generally the affidavits are not included in definition of evidence, but an affidavit is admissible as evidence if the court has directed any party to the proceedings to file the same or if law permits to prove a fact by filing affidavits. In regard to the affidavits tendered by aforementioned two witnesses, learned trial court held that in case defendants are allowed to prove these affidavits by secondary evidence, plaintiffs will not have the opportunity to cross-examine the witnesses, which will cause injustice to them. Learned court also noticed that the case was pending in the court for last seventeen years and the application was filed by the defendants only to delay the trial. Learned trial court, therefore, dismissed the application.

4. In this petition, the defendants (petitioners) have sought to draw support from chapter V of the Evidence Act relating to the documentary evidence. The petitioners have also drawn support from section 35 of the Evidence Act relating to relevancy of entries in public record. It is also contended by the petitioners that a statement made on affidavit is relevant in terms of sub-section (7) of section 33 of the Evidence Act and statement of a dead person is relevant under section 32 also. The petitioners have also relied upon section 80 of the Evidence Act.

5. Mr. P.N. Goja, learned counsel for the petitioners in general reiterated the contentions stated in the petition. Learned counsel urged that the affidavits sworn in by the two witnesses are