Mr. Raj Mohan Singh, J.: - C.M. No.9500-C of 2014

For the reasons mentioned in the application, civil miscellaneous is allowed. The appellants are permitted to make good the deficiency in court fee.

R.S.A. No.4092 of 2014

1. This is a regular second appeal filed by the defendant against the judgment and decree dated 28.04.2014 passed by learned Additional District Judge, Ludhiana, whereby suit of the plaintiff has been decreed in appeal, thereby reversing the judgment and decree dated 27.08.2012 passed by the learned Civil Judge (Junior Division), Ludhiana.

2. Plaintiff filed a suit for possession of the house in question and for recovery of amount of use and occupation of the house in question by the defendant. The defendant was ordered to be proceeded against exparte after filing of the written statement. The learned trial court while dismissing the suit of the plaintiff has recorded findings under Issues No.1 and 2 that according to order dated 27.05.2009, the affidavit was placed on record by the learned counsel for the plaintiff and on 17.09.2009 cross-examination of PW1 was recorded. According to learned trial court, the affidavit was not tendered in to evidence, therefore, it amounts to non-examination of the plaintiff. With this observation, the learned trial court decided Issues No.1 and 2 against the plaintiff. Issue No.1 is in the context of title of the plaintiff over the suit property in question and Issue No.2 is whether defendant is in illegal possession of the house in question. Onus of both these issues was fastened on the plaintiff. The learned trial court was of the view that since the plaintiff has failed to prove his case, therefore, weakness of the case of the defendant do not come in the way of the court to dismiss the suit of the plaintiff as the plaintiff has to stand on his own legs. Even if the defendant is proceeded against exparte and was not available for cross-examination, the same is of no consequence.

3. Feeling aggrieved with the judgment and decree of the learned trial court, the plaintiff ventured to file first appeal before the learned lower appellate court. The learned lower appellate court while relying Order 18 Rule 4 clause 1 CPC accepted the contention of the plaintiff to the effect that there is no requirement under the law that the affidavit must be tendered, rather the copy of the same is to be supplied to the opposite party for the purpose of conducting cross-examination of the witness. After supply of the affidavit, the witness is to stand into the witness box for cross-examination. Rather the order dated 27.05.2009 is apparent to show that the affidavit was exhibited on that day as Ex.PW1/A. Therefore, in view of the observations made by the Hon’ble Supreme Court in 2012 (3) LJR 772 titled Rasiklal Manickchand Dhariwal and another versus M/s M.S.S. Food Products, there is no requirement under Order 18 Rule 5 CPC that the witness must enter into the witness box for the production of his affidavit and formally prove the same. The plaintiff is proved to have tendered his affidavit and has stepped into the witness box for cross-examination and accordingly, he was cross-examined also at length. Therefore, there is no ambiguity in tendering the affidavit Ex.PW1/A. On this broad feature, the learned lower appellate court has accepted the contention of the plaintiff and accepted the appeal.

4. After hearing Mr. H.S. Baath, Advocate learned counsel for the appellants as well as Mr. C.B. Goel, Advocate learned counsel for the respondent (who has been allowed to participate in the proceedings on behalf of the respondent), this court has considered the controversy and on the basis of legal position emerging on record, this court is unable to take different view than the one taken by the learned lower appellate court. Apparently, affidavit of the plaintiff was placed on record by the learned counsel on 27.05.2009. The interlocutory order of the said date makes it abundantly clear that