PARA BISWAL Vs. JANJALI KHAN

JUDGEMENT

(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 paid 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), Kunjanga by the petitioner, as plaintiff. The said suit is one for declaration of tae plaintiffs 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 bv 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 :