Advocates:
['M M BHOKARIKAR', 'CAVEAT FILED BY ADV VIJAY B PATIL', '', '', 'PATIL VIJAY B']

WP/1539/2016

1

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 1539 OF 2016

Digambar Ramchandra Bawaskar

Age 50 years, Occ. Agriculture,

R/o Kerhale Bk., Tq. Raver,

District Jalgaon.

..Petitioner

Versus

1. Soma Prabhu Pawar

Age 55 yeas, Occ. Agriculture

2. Smt.Reshmbai Kamalsingh Chavan

Age 68 years, Occ. Agriculture,

Both r/o Jinasi, Tq. Raver,

District Jalgaon.

3. Shri Maheshchandra Namdeo

Lokhande, Age 45 years,

Occupation Agriculture,

R/o Wani Galli, Raver,

District Jalgaon.

..Respondents

...

Advocate for Petitioners : Shri M.M.Bhokarikar

Advocate for Respondents 1 to 3 : Shri Vijay B. Patil

...

CORAM : RAVINDRA V. GHUGE, J.

Dated: July 19, 2017

...

ORAL JUDGMENT :-

1.

Heard learned Advocates for the respective parties.

2.

Rule.

WP/1539/2016

2

3.

By consent, Rule is made returnable forthwith and the

petition is taken up for final disposal.

4.

The petitioner is aggrieved by the order dated 5.12.2015,

by which, his application Exhibit 17 seeking leave to withdraw

the affidavit filed in lieu of examination-in-chief or discard the

said affidavit, was rejected.

5.

I have considered the strenuous submissions of the

learned Advocates for the respective sides.

6.

There is no dispute that the petitioner had tendered his

affidavit in lieu of examination-in-chief on 4.11.2015. Copy of

the same was supplied to the defendants. However, before the

cross-examination could begin, he filed an application Exhibit 17

on 18.11.2015, stating that owing to a typographical error on

Page No.3 at paragraph No.(C), it is wrongly stated that the

plaintiff admits certain documents, which were favouring the

defendants. It was canvassed that paragraph No.(C) is out of

inadvertence and a typing mistake and hence the plaintiff be

permitted to withdraw the said affidavit.

WP/1539/2016

3

7.

By the impugned order, the trial Court concluded on the

basis of the view taken by this Court in Banganga Cooperative

Housing Society Vs. Vasanti Gajanan Nerurkar and others [2015

(5) Bom. C.R. 813], that the affidavit cannot be withdrawn as it

has become a part of the record.

8.

Issue is, as to whether, the affidavit filed in Court and

prior to the verification of the plaintiff would amount to being an

oral evidence and whether it would be a part of the record. If

not, whether it could be withdrawn.

9.

This Court in the matter of Bank of India Vs. M/s Allibhoy

[AIR 2008 Bom. 81], has concluded in paragraph Nos. 19 to 21

as under:-

“19.

Now, the second question is: Can affidavits in

support claim to be read as evidence? The legal position is

that the affiants, filing an affidavit, are required to appear

before the Court. They are required to enter the witness box

to testify the contents of their respective affidavits as laid

down by this Court in the case of F.D.C. Ltd. v. Federation of

Medical Representatives Association India (FMRAI) and

Ors.: AIR 2003 Bom 371. The relevant extract of the said

judgment is reproduced herein below for immediate

reference.

WP/1539/2016

4

(A) Civil P.C. (5 of 1908), Order 18, Rule 4, examination-

in-chief in each and every case is permitted in form of

affidavit-taking affidavit on record-procedure to be followed

in appealable cases is prescribed in Rule 5- in non-

appealable cases procedure under Rule 13 is to be followed.

In other words, in the appealable cases though the

examination-in-chief of a witness is permissible to be

produced in the form of affidavit, such affidavit cannot be

ordered to form part of the evidence unless the deponent

thereof enters the witness box and confirms that the contents

of the affidavit are as per his say and the affidavit is under

his signature and this statement being made on oath to be

recorded by following the procedure prescribed under R-5.

(Emphasis supplied)

20.

The above judgment is approved by the Apex Court in

the case of Ameer Trading Corporat