IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7 - 1-2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan C.R.P(PD)No.2834 of 2010 and M.P.No.1 of 2010 1.Mr.S.Saravanan 2.Mrs. M.Sangeetha 3.Mrs.S.Saraswathi ... Revision Petitioners/Plaintiffs Vs. Mr. R.Selvakumar . Respondent/Defendant Civil Revision Petition filed under Article 227 of the Constitution of India as against the order and decreetal order dated 27.07.2010 made in I.A.No.5667 of 2010 in O.S.No.8016 of 2009 on the file of the Learned XV Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.V.Chandrakanthan For Respondent : Mr.A.Palaniappan O R D E R The plaintiffs in O.S.No.8016 of 2009 on the file of the Learned XV Assistant Judge, City Civil Court, Chennai, are the revision petitioners herein. 2. The plaintiffs filed the above suit for permanent injunction. The case of the plaintiffs is that the suit property was possessed and enjoyed by one Elumalai Naicker, who got the same under a deed of partition and he was in absolute possession and enjoyment of the property. The said Elumalai Naicker, died on 05.04.1955, leaving behind his wife Kamakshiammal, son Balaraman and daughter Saraswathi, viz,. the third plaintiff herein as his legal heirs to succeed to the suit property. The other two legal heirs viz., the widow and the son viz., Balaraman, also died leaving no legal heirs. Therefore, the third plaintiff become the absolute owner of the suit property and she settled the property in favour of her son, viz., the first plaintiff herein under the settlement deed dated 03.06.2006. The second plaintiff is the wife of the first plaintiff and when the plaintiffs 1 and 2 put up construction, that was objected by the defendant and https://hcservices.ecourts.gov.in/hcservices/ therefore, the plaintiffs filed the suit for injunction. During trial, the plaintiffs filed an interlocutory application in I.A.No.5667 of 2010 under Order 7, Rule 14 of C.P.C. to receive three affidavits sworn to by various persons as documents on their side for the purpose of marking the same as evidence. That application was dismissed and as against the same, this revision petition is filed. 3. it is submitted by the learned counsel appearing for the revision petitioners that the three affidavits were sworn to by the other family members of the defendant accepting the title of the plaintiffs to the suit property. Therefore, those documents are to be received and marked in evidence. He further submitted that the plaintiffs have already examined P.W.1., and marked 14 documents and these three affidavits would also prove the case of the plaintiffs. Hence, those documents are to be received in evidence and they can be marked on the side of the plaintiffs. The learned counsel also relied upon the judgments reported in (2006) 4 M.L.J. 1061 in the matter of (K.Kasturi and others Vs. C.Mohan and others) A.I.R. (2001) S.C. 1158 in the matter of ( Bipin Shantilal Panchal Vs. State of Gujarat) and (2004) III C.T.C 481 in the matter of ( Meenakshiammal Vs. Gopalakannan), in support of his contention. 4. On the other hand, the learned counsel appearing for the respondent submitted that the documents are sworn to by the persons, who are alive and those affidavits cannot be received in evidence, without producing those persons for cross-examination and even under Order 19, Rules 1 and 2, the affidavits can be received in evidence only subject to the condition that the persons who gave affidavits must be made available for cross examination. The learned counsel also relied upon the judgments reported in A.I.R. (1949) Madras 689 in the matter of ( Marneedi Satyam Vs. Masimukkula Venkataswami) and A.I.R. (1968) Calcutta 532 in the matter of (Parekh Brothers Vs. Kartick Chandra) in support of his contention. 5. Admittedly, the documents which are sought to be filed are affidavits sworn to by the persons, who are not parties to the suit and under Order 7, Rule 14 ( iii), a document which is sought to be produced in Court by the plaintiff and which has not been produced along with the plaint or not mentioned in the list annexed to the plaint cannot be received in evidence, without the leave of the Court. Therefore, the Court has got power to permit the plaintiffs to file additional documents at a later stage, eventhough the same was not mentioned in the plaint or not filed along with the plaint. This position has been reiterated in the judgment reported in (2006) 4 M.L.J. 1061(supra). Though a document can be permitted to be received at a later stage, we will have to see whether the affidavits of living persons can be received in evidence during trial. Under Order 19, Rules 1 and 2 of C.P.C. the Court may at any time for sufficient reason https://hcservices.ecourts.gov.in/hcservices/ order that particular facts may be proved by affidavits on such condition as the Court thinks reasonable. As per sub rule (30 of Order 19 of C.P.C., the Court may at the instance of either party, order the attendance for cross-examination of the deponent, when evidence was given by affidavit. Therefore, by a combined reading of Order 19, Rules 1 and 2, it is made clear that an affidavit can be allowed to be received in evidence only on condition that the deponent must be made available for cross-examination and no party has got right to file the affidavit of a living person as of right, unless the Court permits the same subject to the condition stated under Order 19, Rules 1 and 2 of C.P.C. This has been made clear in the judgment reported in A.I.R. (1949) Madras 689 wherein it has been held as follows:- " Affidavit evidence is not permitted except where there is an agreement between the parties that evidence may be taken by affidavit or where under Order 19, Rule1 of C.P.C. there is an order of Court that particular facts may be proved by an affidavit or that affidavit of any witness may be read at the hearing. Hence, the only basis on which the affidavit of a living person not called into the witness box can be acted upon as admissible evidence as that should be capable of being regarded is a statement in writing complying with the conditions prescribed in Section 32 of the Indian Evidence Act. " 6. Further, the Hon'ble Supreme Court in the judgment reported in 1988 S.C. 1381 ( Sudha Devi Vs. M.P.Narayanan ) has held that the affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason, the Court passes an order under Order 19, Rule 1 or 2 of C.P.C. As per Order 19, Rules 1 and 2, the Court can permit the affidavit to be filed on condition that the defendant being available for cross- examination and it is not open to the revision petitioners to file an affidavit and request the Court to receive the same in evidence as of right. The other decisions relied upon by the learned counsel appearing for the revision petitioners will not apply to the facts of the present case on hand. https://hcservices.ecourts.gov.in/hcservices/ 7. Therefore, I am of the opinion that the Court below, considering all these aspects has rightly dismissed the application and hence, I do not find any reason to interfere with the order of the Lower Court and hence, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sd To The XV Assistant Judge, City Civil Court, Chennai. +1cc to Mr.A.Palaniappan, AdvocateSr 1897 +1cc to Mr.V.Chandrakanthan, Advocate Sr 1699 PUR(CO) km/25.1. C.R.P(PD)No.2834 of 2010 https://hcservices.ecourts.gov.in/hcservices/