JUDGMENT
A.S. Naidu, J.
1. This case raises a very pertinent question of law. The trial Court rejected the evidence filed by one of the witnesses adduced through affidavit in consonance with Order 18, Rule 4 of the Civil Procedure Code and directed the said witness to furnish his evidence on affidavit afresh. The question is as to whether the Trial Court has such power.
2. For appreciating the said point it would be necessary to have a bird’s eye view at the background.
Title Suit No. 122 of 1997 has been filed in the Court of Civil Judge (Junior Division), Kujanga by the petitioner, as plaintiff. The said suit is one for declaration of the plaintiff’s title and for restraining the defendants from disturbing the peaceful possession of the plaintiff. After commencement of the trial, the plaintiff adduced evidence of three witnesses being P.Ws. 1, 2 and 3 by way of affidavit as contemplated under Order 18, Rule 4 of the Civil Procedure Code. Defendant-opposite parties filed an objection to the evidence of P.W. 3 adduced through affidavit. It was stated in the objection that P.W. 3 had averred certain extraneous matters in his affidavit, which were not pleaded. The Trial Court accepted the objection raised and by the impugned Order dated 13.8.2004 came to the conclusion that the facts mentioned in Paras 3 and 4 of the affidavit evidence of P.W. 3 filed under Order 18 Rule 4 of the Civil Procedure Code being extraneous were liable to be deleted from his evidence. The Trial Court did not stop there. He further held that the affidavit of the said witness filed under Order 18 Rule 4 of the Civil Procedure Code on 5.8.2004 was not acceptable and directed the said witness to furnish his evidence on affidavit afresh after deleting the objectionable portions. The said order is assailed by the plaintiff in this Writ Petition.
3. For appreciating the correctness of the aforesaid order it would be prudent to refer to Order 18 Rule 4 of the Civil Procedure, which stipulates as follows;
“… 4. Recording of evidence ; (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence :
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination- in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it :
Provided that the Court may, while appointing a commission under this Sub-rule, consider taking into account such relevant factors as it thinks fit.”
4. Order 18, Rule 5 of the Civil Procedure Code stipulates as to how evidence shall be taken in appealable cases.
A conjoint reading of Rules 4 and 5 of Order 18 of the Civil Procedure Code would reveal that in each and every case evidence (examination-in-chief) shall be in the form of affidavit which is to be taken on record. The procedure prescribed under Rule 5 is to be followed in appealable cases. In non-appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in Rule 13 of Order 18. In other words, mere-production of the affidavit by the witness wili empower the Court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to Rule 13 of Order 18 of the Civil Procedure Code in all cases except in appealable cases where it will be necessary for the Court to record evidence on production of the affidavit in respect of examination-in-chief by asking the deponent to produce such affidavit in accordance with Rule 5, Order 18 of the Civil Procedure Code. There is no doubt, in both the cases, for the purpose of cross-examination, the Court has to follow the procedure prescribed under Sub-rule (2) to Rule 4 read with Rule 13 in case of non-appealable cases and the procedure prescribed under Sub-rule (2) to Rule 4 read with Rule 5 in appealable cases.
5. In the appealable cases though the examination-in-chief of witnesses 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 statement and the affidavit is under his signature and this statement being made on oath is to be recorded by following the procedure prescribed under Rule 5. In non-appealable cases, however, the affidavit in relation to examination-in-chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order 18. The cross-examination of such deponent in case of appealable cases will have to be recorded by applying the provisions of Rule 5 whereas in case of non-appealable cases the Court wouid be empowered to exercise its power under Rule 13. The same view was expressed by the Bombay High Court in the case of FDC Ltd. v. Federation of Medical Representatives Association A\R 2003 Bom. 371 which was approved by the Supreme Court in the case of Ameer Trading Corporation Limited v. Shapoorji Data Processing Limited, AIR 2004 SC 355. The Supreme Court in the said case observed as follows;
“The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever the examination- in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court.”
7. The discussion made above thus makes it clear that the evidence produced on affidavit is to be taken on record. The evidentiary value of such evidence has to be considered along with other evidence on record. The Court has no right to reject the evidence and direct the witness to file a fresh affidavit.
8. Law is no more res Integra that if there is variance between the pleadings and the evidence, the evidence beyond the pleadings should not be taken into consideration and should be ignored. If P.W. 3 has made certain statements in his evidence rendered through affidavit, contrary to the pleadings and/or in variance with the pleadings of the parties the said statements are to be ignored and not that the entire evidence/affidavit is to be discarded. Under such circumstances, it is open to the defendants in course of cross-examination to confront the witness with the pleadings and/or bring to the notice of the Court in course of hearing. The intention of the Legislature as would be evident from Order 18, Rule 4 of the Civil Procedure Code as would evident from the proviso is, if any of the parties have any objection to the evidence adduced by a witness through affidavit, the same can be challenged only at the time of hearing of the suit.
9. In view of the aforesaid clear position of law while answering the question posed I hold that the Trial Court has no authority or jurisdiction to discard, reject or return the evidence adduced by a witness through affidavit. I have thus no hesitation to quash the impugned order dated 13.8.2004 and direct the Learned Civil Judge (Junior Division), Kujanga to accept the evidence of P.W. 3-Ananta Charan Swain filed through affidavit and to proceed with the suit strictly in consonance with Order 18, Rules 4 and 5 of the Civil Procedure Code and the procedure indicated in the preceding paragraphs.
10. The suit is of the year 1997. Admitting the Writ Petition at this stage would not be beneficial to either side. The question decided being a pure question of law, no notice was issued to the defendant-opposite parties. However, I direct that an authenticated Xerox Copy of this order shall be served by the Learned Counsel for the plaintiff-petitioner upon the Learned Counsel for the defendant-opposite parties and a receipt shall be filed before the Court below within three weeks from today or soon after reopening of Court after the Puja Vacation. Liberty is given to the defendant-opposite parties to seek any modification/variation if this order any way prejudice their right.
With the aforesaid observation/direction the Writ Petition is