1 S.B.CIVIL WRIT PETITION NO.1247/2008 Amritlal v. ADJ(FT)No.5,Udaipur & Ors. Date of Judgment :: 11 th March, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. R.S.Mankad, for the petitioner. Mr. M.S.Singhvi] Mr. R.Dave ] for the respondents. .... In a suit for specific performance an application as per the provisions of Order VII Rule 14 (3) read with Section 151 Code of Civil Procedure was filed by the plaintiff seeking leave to produce a document i.e. an affidavit sworn-in by Late Shri Prabhulal Jain who died on 10.4.2007. Learned Additional District Judge (Fast Track) No.5, Udaipur by order impugned dated 10.1.2008 rejected the application aforesaid on the count that the affidavit of a died person prepared as statement in chief does not come within the perview of a document as defined under Section 3 of the Indian Evidence Act. While assailing validity of the order impugned, the contention of counsel for the petitioner plaintiff is that in light of the provisions of Section 32(8) of the Indian Evidence Act, 1872 (hereinafter referred to as “the Act of 1872”) the 2 affidavit sought to be produced is a statement of relevant fact by a person who is dead and, therefore, the trial court erred while not treating the same a document as defined under Section 3 of the Act of 1872. I have considered the argument advanced and also examined the order impugned. The suit for specific performance was filed by the plaintiff petitioner in the year 1982. The affidavit sought to be placed on record was sworn-in by Shri Prabhulal Jain who was to appear before the trial court as a witness. The trial court rejected the application on the count that Shri Prabhulal Jain was the only witness except the plaintiff himself and, therefore, it would not be possible to cross examine Shri Prabhulal, thus, the statement in the form of affidavit is not a relevant fact as per the provisions of Section 32(8) of the Act of 1872. Section 32(8) of the Act of 1872 provides that when the statement was made by number of persons and expressed feelings or impressions on their part relevant in the matter in question, then such a statement, written or verbal, made by a person who is dead, may be a relevant fact. In the instant matter it is not in dispute that Shri Prabhulal Jain was the only witness and as such whatever said to be stated by him in the 3 affidavit was not made by number of persons and as such the provisions of Section 32(8) of the Act of 1872 are having no application. After death of Shri Prabhulal Jain it shall not be possible to cross examine him and, therefore, I am of the view that the trial court rightly rejected the application preferred by the petitioner plaintiff under Order VII Rule 14(3) Code of Civil Procedure. No interference of this Court under Article 227 of the Constitution of India, thus, is warranted. The writ petition is dismissed accordingly. ( GOVIND MATHUR ),J. Kkm/ps.