The main legal point established in the judgment is that evidence produced on affidavit is to be taken on record and cannot be rejected or returned by the court.

A. S. NAIDU, J.

( 1 ) THIS case raises a very pertinent question of law. The trial Court rejected the evidence filed by one of the witnesses adduced through affidavit in consonance with Order 18, Rule 4 of the Civil Procedure Code and directed the said witness to furnish his evidence on affidavit afresh. The question is as to whether the trial Court has such power.

( 2 ) FOR appreciating the paid point it would be necessary to have a bird's eye view at the background. Title Suit No. 122 of 1997 has been filed in the Court of Civil Judge (Junior Division), Kunjanga by the petitioner, as plaintiff. The said suit is one for declaration of tae plaintiffs title and for restraining the defendants from disturbing the peaceful possession of the plaintiff. After commencement of the trial, the plaintiff adduced evidence of three witnesses being P. Ws. 1, 2 and 3 bv way of affidavit as contemplated under Order 18, Rule 4 of the Civil Procedure Code. Defendant-opposite parties filed an objection to the evidence of P. W. 3. adduced through affidavit. It was stated In the objection that P. W. 3 had averred certain extraneous matters in his affidavit, which were not pleaded. The trial Court accepted the objection raised and by the impugned order dated 13-8-2004 came to the conclusion that the facts mentioned in Paras 3 and 4 of the affidavit evidence of P. W. 3 filed under order 18, Rule 4 of the Civil Procedure Code being extraneous were liable to be deleted from his evidence. The trial Court did not stop there. He further held that the affidavit of the said witness filed under Order 18, Rule 4 of the Civil Procedure Code on 5-8-2004 was not acceptable and directed the said witness to furnish his evidence on affidavit afresh after deleting the objectionable portions. The said order is assailed by the plaintiff in this writ petition.

( 3 ) FOR appreciating the correctness of the aforesaid order it would be prudent to refer to Order 18, Rule 4 of the Civil Procedure, which stipulates as follows :"xxx 4. Recording of evidence. (1) In every case, the examination-In-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence; provided that where documents are filet) and the parties rely upon the documents, the proof and admissiblllty of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) 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: provided that the Court may, while appointing a Commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. "

( 4 ) ORDER 18, Rule 5 of the Civil Procedure Code stipulates as to how evidence shall be taken in appealable cases. A conjoint reading of Rules 4 and 5 of Order 18 of the Civil Procedure Code would reveal that in each and every case evidence (examlnation-in-chief) shall be in the form of affidavit which is to be taken on record. The procedure prescribed under Rule 5 is to be followed in appealable cases. In non-appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in Rule 13 of Order 18. In other words, mere production of the affidavit by the witness will empower the Court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to Rule 13 of Order 18 of the Civil Procedure Code in all cases except in appealable cases where it will be necessary for the Court to record evidence on production of the affidavit in respect of examination-in-chief by asking the deponent to produce such affidavit in accordance with Rule 5, Order 18 of the Civil Procedure Code. There is no doubt, in both the cases, for the purpose