IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11080 of 2009(O)
1. EDEENA SUKUMARAN, W/O.UPPARAPERUMBARIL
... Petitioner
Vs
1. ALAVI HAJI,S/O.CHOLASSERRYIL AYIDRU
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.P.VENUGOPAL (1086/92)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.11080 of 2009 - O
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Dated this the 30th day of September, 2009
J U D G M E N T
Writ petition is filed seeking the following reliefs:
“i) To call for the records leading to Ext.P5
and to set aside the same.
ii) To stay all further proceedings in
O.S.No.133/2002 on the file of the Sub Court,
Ottappalam.”
2. Petitioner is the plaintiff in O.S.No.133 of 2002 on the
file of the Sub Court, Ottappalam. Suit is one for recovery of
money based on an agreement. Suit claim was disputed by the
defendant in his written statement contending that the
agreement had been fabricated on blank signed papers obtained
in respect of another transaction. Suit was once decreed
exparte. An application moved by the defendant to set aside the
exparte decree was dismissed by the trial court, but, reversed in
F.A.O.No.205 of 2008 by this Court subject to terms. After
setting aside the exparte decree and restoration of the suit the
trial commenced. The plaintiff was examined as PW1.
Examination of the attestors to the agreement by causing
W.P.(C).No.11080 of 2009 – O
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production of the chief affidavit of one of such attestors prepared
when the case came up for trial previously was objected to by
the defendant contending that the chief affidavit should be one
prepared on the date when the witness is examined. Sustaining
that objection, the court below passed Ext.P5 order rejecting the
affidavit of the witness prepared earlier. Propriety, legality and
correctness of Ext.P5 order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
3. Notice given respondent/defendant has entered
appearance through counsel. I heard the counsel on both sides.
4. Learned counsel appearing for the petitioners inviting
my attention to Rule 4 of Order XVIII of the Code of Civil
Procedure submitted the rule insist only for production of an
affidavit of the witness, but, not the point of time the affidavit is
to be prepared and filed towards the chief examination of the
witness. In the facts and circumstances involved in the case
where an exparte decree had been passed earlier in favour of the
plaintiff, but, later reversed, it is the submission, the affidavit of
the witness prepared previously deserve to be accepted towards
W.P.(C).No.11080 of 2009 – O
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the chief examination of the witness. According to the counsel
the attestors to the agreement, including the witness sought to
be examined, both of them had been won over by the defendant
and in that context also the previous affidavit filed by one of
them has crucial value in resolving the disputes arising for
adjudication in the suit. So much so, the reception of the
affidavit even assuming it cannot be received as sufficient for the
chief examination of the witness, according to the counsel, was
improper and incorrect. On the other hand learned counsel for
the respondent would contend that even if the time of preparing
of the affidavit is not specified by the rules when the witness is
sought to be examined and an affidavit is filed towards chief
examination of that witness it must have some nexus with the
point of time he is examined before the court. Needless to point
out that affidavit by itself is not evidence as per Section 1 of the
Indian Evidence Act except where it is so provided by rules.
When the rules contemplate reception of affidavit as evidence it
has got significance and value. Rule 4 of Order XVIII of the Code
of Civil Procedure permitting notice to the suit to lead evidence of
the witness in respect of the examination in chief by affidavit is a
W.P.(C).No.11080 of 2009 – O
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new innovation to save the precious time of the court and
brought in by Act 104 of 2002. The question posed for
consideration is whether the affidavit that has to be presented
towards the examination in chief of the witness should be one
prepared on the date of his examination or earlier. That aspect
cannot be looked in isolation, but, with reference to the totality of
the facts and circumstances presented in the case. It is the case
of the plaintiff that an affidavit was prepared toward chief
examination of the witness at the time when the case was listed
earlier, when an exparte decree was passed as the defendant
remained absent. At that point of time the affidavit of the
witness so prepared was not filed before the court since his
examination was not warranted by the absence of the defendant.
Very same affidavit sworn to by that witness was sought to be
presented when the case again came up in the list after setting
aside the exparte decree. The reasoning adopted by the court
below is that such affidavit cannot be received towards
examination in chief of that witness. The court has insisted for a
fresh affidavit for examination of the witness for appreciating the
facts and circumstance involved in the case. Plaintiff has a case
W.P.(C).No.11080 of 2009 – O
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that the witness has been won over the defendant and that
circumstance should have been taken note of by the court in
accepting the affidavit of the witness prepared earlier. Setting
aside Ext.P5 order, I direct the court below to receive the
affidavit ad permit the petitioner to examine that witness cited by
him. It is submitted by the learned counsel for the petitioner
after passing Ext.P5 order, evidence has been closed and the
witness summoned by him dispensed. The court below shall
reopen the evidence suo motu and on steps taken by the plaintiff,
issue summons to the witness for his examination. The court
below is also directed to expedite the trial of the suit and dispose
it of at the earliest before closing of the courts for Christmas
vacation.
Hand over a copy of the judgment to the counsel on both
sides and send a copy to the court concerned.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-