An affidavit of a living person cannot be marked as documentary evidence through another person, even for collateral purposes, as the party remains available to provide oral evidence before the court.

The Court made the following: ORDER

ORDER:

This Civil Revision Petition is filed under Article 227 of Constitution of India, aggrieved by the order in I.A.No.1464 of 2017 in O.S.No.174 of 2013, dated 30.10.2017 passed by the IV Additional District Judge, Kakinada.

2. The brief facts of the case are that the petitioner herein is the plaintiff and the respondents herein are the defendants in the main suit in O.S.No.174 of 2013. Originally, the said suit was filed before the IV Additional District Judge, Kakinada (for short “the Court below”) for recovery of money from the defendants/respondents. During pendency of the said suit, the petitioner/plaintiff filed I.A.No.1464 of 2017 under Section 151 of the C.P.C., to mark the affidavit given by the defendant No.2 to 7 as exhibit tentatively and also collateral purpose. On considering the submissions, the Court below has dismissed the said I.A., on the ground that as the affidavit of a living person cannot be marked through another person even for collateral purpose. Aggrieved by the same, the present Civil Revision Petition is filed.

3. On behalf of the respondents, no counter affidavits filed.

4. Heard Sri Kanda Srinivasu, learned Standing counsel for Endowments appearing for the petitioner and Sri Harikishan Kudikala, learned counsel appearing for the respondents.

5. As seen from the proceeding sheet, this Court, vide order dated 23.02.2018, has granted interim stay as prayed for and later, the same was extended until further orders.

6. During hearing, the learned counsel for the petitioner argued that the order passed by the Court below is erroneous and contrary to law. He further submits that the Court below has mechanically dismissed the I.A., without recording any reasons or going into merits of the I.A. and the Court below failed to consider that as per the auction conditions if the lessee or licensee becomes the highest bidder has to submit the security. The respondents 2 to 7 herein have given undertaking that if the highest bidder fails to pay the amount they will pay the arrears.

On the other hand, learned counsel for the respondents opposed for grant of any relief in favour of the petitioner.

7. The further contention of the learned counsel for the petitioner that the Court below erred in coming to the conclusion that affidavit need not be marked of living persons is made without appreciating the true and correct facts. In fact, the affidavit given by the defendants 2 to 7 show that the burden is cast upon them in case of the failure by the highest bidder to pay the license fee for license hold rights of gummatams for the marriages. He further submits that the 1st defendant has fell into arrears after accepting the terms and conditions for license hold rights of supply of gummatams for marriage and even the Hon’ble High Court in WVMP No.2313/2013 in WPMP No.25180/2013 in W.P.No.20535/ 2013 has held that the defendant No.1 license period has commenced on 01.08.2012 up to 31.07.2013, the petitioner cannot, now turn round and contend that he has been delivered possession only on 26.10.2012 and that he has got right to carry on business till 25.10.2013 and that is contrary to the terms subject to which, he has participated in the open auctions.

8. The definition of ‘Evidence’ as per Section ‘3’ of the Indian Evidence Act reads as follows:

Evidence means and includes.

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called oral evid