ORDER

1. The petitioners/defendants are aggrieved by the order dated 16.9.2014 passed by 5th Civil Judge, Class-II, Morena whereby the application preferred by the respondents/plaintiffs has been allowed and respondents/plaintiffs have been allowed to file fresh affidavit under Order XVIII rule 4 C.P.C. and earlier affidavit filed by the plaintiffs stood deleted from record by the impugned order.

2. Precisely stated facts of the case are that a suit for declaration and permanent injunction was filed by the plaintiffs/respondents No.1 to 11 (herein referred as plaintiffs) against the petitioners as well as against respondents No.12 to 41. After framing issues, plaintiffs submitted examination-in-chief of plaintiff-Rajesh Kumar on affidavit under Order XVIII rule 4 of CPC on 6.1.2003. It appears that plaintiffs wanted to add some more facts into their evidence, therefore, they submitted another affidavit of same witness Rajesh-Kumar treating it to be another examination-in-chief on 28.7.2014. They did not stop here and again submitted another affidavit for chief-examination of same witness Rajesh Kumar on 1.9.2014 with an application under section 151 of CPC with the prayer to cancel the earlier affidavits of chief-examination of Rajesh Kumar filed by the plaintiffs and in their place take the examination-in-chief dated 1.9.2014.

3. Petitioners as defendants contested the said contention and it was the specific stand of petitioners that no such withdrawal of earlier examination-in-chief can be done by the plaintiffs.

4. The trial Court passed the impugned order dated 16.9.2014 in which application under section 151 of CPC preferred by the plaintiffs was allowed and they were directed to delete the earlier affidavits of examination-in-chief filed on 6.1.2003 as well as 28.7.2014 and directed to take subsequent affidavit of examination-in-chief dated 1.9.2014 on record.

5. According to counsel for the petitioners/defendants, decision under challenge is arbitrary and illegal. Affidavits of examinationin-chief cannot be deleted altogether from the record. At best, plaintiffs may add some facts subsequent to the affidavit filed earlier but cannot delete the earlier affidavit. Trial Court erred and order suffers from illegality.

6. Counsel for the respondents supported the impugned order and submitted that due to mistake some important facts could not be referred in original affidavits therefore, same were supplemented later on. They prayed for dismissal of petition.

Heard.

7. Here, the case in hand is in respect of examination-in-chief (affidavit) of witnesses which was earlier filed in the year 2003 and after 11 years, plaintiffs again sought filing of subsequent affidavit under Order XVIII rule 4 of CPC and sought deletion of earlier affidavit from record. So far as supplementing the additional grounds or factual contents are concerned, same may be permissible if the facts warrant so. Here, plaintiffs appear to be exceeded in their prayer when they tried to get the earlier affidavits deleted from the record which is not permissible. Court cannot order deletion of any portion of the examination-in-chief by way of affidavits earlier filed by the plaintiffs.

8. Once an Evidence Affidavit is filed, examination-in-chief of the deponent has, to all intents and purposes, begun because once Evidence Affidavit is filed, since there is no absolute requirement of it being required to be reaffirmed by the deponent while appearing in the witness box before that affidavit forms part of the evidentiary record, it follows that it is examination-in-chief as soon as it is affirmed. Once examination-in-chief is affirmed by way of filing it before the trial Court, thereafter, it is not possible to withdraw the said affidavit. Deponent may file an affidavit subsequent to it and to add or supplement the facts for the reason that order XVIII rule 4 of CPC does not limit itself to a single affidavit but nonetheless deponent ought not be allowed to keep on