KAVITHA MAHESH Vs. CHIEF ELECTION COMMISSIONER

JUDGEMENT

(1.) Petitioner and Sri C. Shashikantha, learned Counsel for the Respondent have been heard on acceptance or otherwise of the affidavit evidence sought to be placed before the Court by the Petitioner as her evidence to support the petition pleadings.

(2.) Sri C. Shashikantha, learned Counsel for the Respondent, has raised objections for accepting the evidence of the Petitioner in the form of an affidavit and has submitted that the evidence of the Petitioner should be necessarily deposed in person cannot be given in writing but can only be oral and such is the procedural requirement even under the Code of Civil Procedure, 1908 [Code of Civil Procedure] as contemplated in terms of Rules 4 & 5 of Order XVIII, reading as under:

(3.) Petitioner, on the other hand, has drawn support from the provisions of Rule 4 of Order XVIII Code of Civil Procedure, to submit that affidavit evidence can be accepted and in this regard has further submitted that the provisions of Rule 4 which govern all situations should prevail over the provisions of Rule 5 and more so for the reason that whereas the provisions of Rule 5 of Order XVIII Code of Civil Procedure were introduced by way of an amendment to Code of Civil Procedure in the year 1976, the present form of Rule 4 of Order XVIII Code of Civil Procedure is in terms of an amendment to Code of Civil Procedure by Amendment Act No. 46 of 1999 and Section 12 of the Act 22 of 2002 with effect from 1-7-2002 and therefore this should prevail.