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2012 SCC OnLine AP 200 : 2013 AIR CC 745 : (2013) 1 ALD 137 :
(2013) 2 ICC 808 : (2013) 3 ALT 795
In the High Court of Andhra Pradesh at Hyderabad
(BEFORE L. NARASIMHA REDDY, J.)
Sri Mohammed Abdul Ahmad
Versus
Sri Mohammed Abdul Gafoor @ Ahmed, and
another
Counsel for petitioner: Sri D. Madhava Rao
C.R.P. No. 237 of 2012
Decided on September 6, 2012
ORDER:
The observations made by many lawyers and jurists, whether in the
course of proceedings, or in the discussions outside, that the
amendment to Order XVIII Rule 4 of C.P.C., has generated more
problems, than what it proposes to solve; are in a way, fortified by this
case.
nd
The 2 respondent herein by name, Kadiyala Appa Rao, filed O.S.
No. 25 of 2006 in the Court of Senior Civil Judge, Khammam against
the 1st respondent (defendant No. 1), and the petitioner (defendant No.
2) for the relief of specific performance of agreement of sale, dated 25-
06-1993, in respect of the suit schedule property. After the pleadings
became complete, issues were framed and the trial of the suit
nd
commenced. The evidence of the 2 respondent, i.e., plaintiff was
concluded. The next stage was recording of evidence, on behalf of the
1st respondent. He filed an affidavit, in lieu of chief-examination (for
short ‘the affidavit’), as provided for under Rule 4 of Order XVIII C.P.C.
On the basis of its contents, Ex.B-1 was marked, by the Court.
st
Thereafter, the 1 respondent changed his advocate, and on his advise,
he wanted to withdraw the affidavit filed earlier and substitute the
same with another. For that purpose, he filed I.A. No. 1233 of 2011,
citing Rule 4 of Order XVIII C.P.C. The petitioner opposed the
application. Obviously because the changed version of the 1st
nd
respondent was supporting his case, the 2 respondent did not oppose
the application. Through its order dated 26-08-2011, the trial Court
allowed the I.A. The same is challenged in this C.R.P.
Sri D. Madhava Rao, learned counsel for the petitioner submits that
the facility created under Rule 4 of Order XVIII C.P.C., to adduce
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st
evidence, in chief, by filing an affidavit; was availed by the 1
respondent, and once the affidavit was accepted by the trial Court and
Ex.B-1 was marked, it became part of record.
He contends that just as evidence recorded by the trial Court,
though in chief, cannot be permitted to be amended, at the discretion
of the party, and the affidavit once taken into account by the Court,
cannot be permitted to be altered, much less substituted in its entirety.
There is no representation for the respondents.
In the course of evidence, the 1st respondent filed the affidavit. He
has made reference to certain documents in it. The original of the
affidavit was submitted to the Court and copies thereof were furnished
to the other parties, as required under Rule 4 of Order XVIII C.P.C.
The question as to when an affidavit filed, in lieu of chief-
examination would form part of record, was dealt with by a Full Bench
1
of this Court in RITA PANDIT v. ATUL PANDIT . The judgments of the
Supreme Court in SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU
v. UNION OF INDIA2 and AMEER TRADING CORPORATION LTD. v.
3
SHAPOORJI DATA PROCESSING Ltd. apart form the judgments
rendered by the High Courts of Kerala and Bombay, were discussed at
length. The Full Bench summed up its observations in paragraph 24, as
under:
“An affidavit is merely an affidavit when it is filed in the Court. But
when a witness appears for cross-examination, it is necessary for the
witness either to confirm or differ with the contents of the affidavit.
After his confirmation or denial of the contents of affidavit, whatever
recorded is the evidence and if the witness confirms the affidavit, the
affidavit would become part of the statement made by the deponent
before the Court. Therefore what is finally taken as evidence by the
Court is not the affidavit, but what is contained in the affidavit, if
confirmed by the deponent when he appears before the Court for cross-
examination. Going by the two judgments of the Supreme Court
reported in Salem Advocate Bar Association, Tamil Nadu v. Union of
India (supra) and Ameer Trading Corporation Ltd. v. Shapoorji Data
Processing Ltd., (supra) we hold,
(1) that in all cases the examination-in-chief has to be conducted by
way of affidavits;
(2) that in cases where the witness is not under the control of the
party who wants to examine him as a witness, recourse can be taken to
Order 16, Rule 1 of the Code of Civil Procedure and after taking
recourse to Order 16, Rule 1 of CPC and after he is summoned by the
Court, the witness can be asked either to file an affidavit or can be
examined in the Court itself”.
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From this, it is evident that an affidavit becomes part of evidence,
only on its being confirmed by the person, who filed it. The expressions
“confirmation” or “denial” were, no doubt, employed by the Full Bench.
However, as to when an affidavit of this nature can be said to have
been confirmed or denied, is not explained elaborately, and there is
possibility for the existence of some untouched areas.
The appearance of a witness, who filed the affidavit; for cross-
examination, and his having been subjected to cross-examination
would, undoubtedly, be a step towards confirmation. However, in case
the cross-examination as such did not take place, but the affidavit was
acted upon by the Court, it cannot be said that it has not become part
of record. In a given case, when the affidavit filed in the Court acted
upon such as, by giving marking to the documents mentioned therein,
it can certainly be treated as part of record. The reason is that, if the
affidavit is not treated as forming part of record on the ground that the
witness was not cross-examined, the very basis for marking of
documents disappears.
A document, which is already given marking, as a consequence,
cannot be
“demarked” and treated as part of record. Such an inconsistent and
illogical situation cannot be contemplated. Therefore, giving of marking
by a Court to the documents, mentioned in an affidavit filed in the chief
-examination would make an affidavit as part of record,
notwithstanding the fact that the witness may not have been cross-
examined.
Once the affidavit becomes part of record, the party who filed it
looses the right and prerogative to change or alter it. For all practical
purposes, it is a chief-examination, recorded and certified by the Court
itself. Here itself, one has to keep in mind that recording of chief-
examination is not a prohibited step, notwithstanding the amendment
to Rule 4 of Order XVIII C.P.C. In SALEM ADVOCATE BAR
ASSOCIATION, TAMIL NADU v. UNION OF INDIA (2 supra), the Hon'ble
Supreme Court held that in case a witness is summoned by the Court,
he cannot be insisted to file affidavit, and discretion must be left at
him. If the witness so summoned does not wish to file affidavit, in lieu
of chief-examination, the Court would be under obligation to record his
oral evidence in chief-examination.
If an affidavit has already become part of record, alteration or
substitution thereof would be nothing but that of the chief-examination
itself. In the instant case, the trial Court proceeded on the assumption
that the affidavit did not become part of record, because DW-1 was not
cross-examined. Such an approach is untenable, in view of the fact that
the affidavit was acted upon and a document mentioned therein was
given marking. If the affidavit filed were to have been permitted to be
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withdrawn, the fate of the document marked on its basis would hang in
a limbo. The reason in that there is no process of demarking a
document, once marked.
Hence, the C.R.P. is allowed, and the order under revision is set
aside. The miscellaneous petition filed in this C.R.P. shall also stand
disposed of.
There shall be no order as to costs.
———
1)
AIR 2005 AP 253
2)
AIR 2003 S
3)
AIR 2004 S
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