KALU SANIL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is before this Court under articles 226 and 227 of the Constitution of India, praying for the following relief:

(2.) THE contention of the petitioner is that the parties to the suit cannot be permitted to file affidavit in lieu of examination-in-chief and even if the provision contained in Order 18 Rule 4 of CPC is held to be valid, it is applicable to witnesses and not to the parties to the suit. It is further contended that Order 18, Rule 4 of CPC is in direct conflict with Section 6 (2) of the Oaths Act as well as the Indian Evidence Act. It is also contended that the Apex Court has not considered the above contentions while deciding the case viz. , Salem Advocate Bar Association, Tamil Nadu Vs. Union of india, ILR 2003 Kar 3315 and ILR 2005 Kar 4555, and therefore there is no impediment to entertain the Writ Petition.

(3.) IT is pertinent to mention that the petitioner is defendant in the suit in O. S. No. 176 of 1998 filed by the respondent Nos 2 to 8 herein for partition and separate possession of the plaint schedule properties. After framing of the issues, the 2nd respondent herein viz. , the 1st plaintiff filed affidavit dated 21. 6. 2005 in lieu of her examination-in-chief in the Suit. The petitioner filed an application under Section 151 of CPC on 14. 7. 2005 seeking direction to the plaintiff to give her evidence by way of examination-in-chief before the Court rejecting the affidavit filed in lieu of her examination-in-chief. It was urged before the Trial Court that Order 18, Rule 4 of CPC does not contemplate filing of affidavit in lieu of examination-in-chief by the parties to the suit. The plaintiff in the suit opposed the application. The Trial Court, after hearing arguments, by the impugned order at Annexure-A, rejected I. A.- IV. Therefore, the petitioner is before this Court praying for quashing Annexure-A also.