RANJIT SINGH Vs. NARANJAN SINGH

JUDGEMENT

(1.) DEFENDANT -petitioner has filed this petition under Article 227 of the Constitution of India, for setting aside the order dated 08.05.2009, passed by Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi, recalling the plaintiff for examination and cross-examination by exercising the powers under Order 18 Rule 17 CPC, observing that on earlier occasion in a case the District Judge, Kapurthala, had remanded the case back for recording the evidence afresh on the ground that the affidavit lacked proper oath and attestation and that the document had been exhibited in the affidavit itself. He observed that though the suit is at final stage but on account of some error existing on the record, it may meet the same fate on the ground that the evidence has not been properly recorded as per law.

(2.) COUNSEL for the petitioner has vehemently argued that recalling the plaintiff to produce fresh affidavit will tantamount to fill-in the lacunae and that it is beyond the ambit of jurisdiction of the Court to fill-in the lacunae by permitting the plaintiff to file a fresh affidavit in which the documents have not been exhibited in the affidavit itself.

(3.) I have heard counsel for the petitioners as well as counsel for the respondent appearing in person. The plaintiff in the present case was examined-in-chief by way of affidavit EX.PA and documents EX. P1 to EX. P7, had been marked in the affidavit itself. The documents which were mentioned in the affidavit were required to be marked and exhibited in the statement before the Court. The defendant-petitioner has contended that the affidavit of the plaintiff was tendered on 24.05.2007. His cross-examination stands conducted. Other witnesses were examined. Thereafter, the evidence of the plaintiff was closed on 07.01.2008. The plaintiff has already been examined in rebuttal. In view of above circumstances, the defendant sought the dismissal of the application filed by the plaintiff for his re-examination. Order 18 Rule 4 CPC, which was incorporated by amendment dated 01.07.2002, reads as follow :- 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 reexamination) 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.