HON’BLE MR.JUSTICE R.SUBHASH REDDY Writ Petition No.23673 of 2010 Date: March 25, 2011 Between: Ms.Tallita Tyagi, represented by her GPA holder, Lt.Col.BNS Tyagi (Retd.) Aged 72 years, Occ:Defence Pensioner, R/o.Sainikpuri, Secunderabad – 500 094 … Petitioner And Principal District Judge, Ranga Reddy District, represented by its Presiding Judge, L.B.Nagar, Hyderabad, A.P., and another … Respondents Order: This writ petition is filed with a prayer which reads as under: “For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon’ble Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari by declaring the action of the 1st respondent for ignoring the maintainability of condonation for delay petition, i.e. I.A.No.4130 of 2008 in CMASR.16352 of 2008 filed by alienee pendent elite/Respondent No.2 and by upholding alienee pendente lite’s affidavit in lieu of Examination in Chief as valid while passing order dated 09.08.2010 in I.A.No.4838 of 2009 filed against said affidavit in lieu of Examination in Chief in I.A.No.4130 in CMASR. No.16352 of 2008 and to cross examine the said alienee pendent elite, as illegal, arbitrary, improper and violative of Article 14 of the Constitution of India and Doctrine of lis pendens enshrined under Section 52 of Transfer of Property Act, 1882 and consequently set-aside the said order dated 09.08.2010 passed by 1st respondent in I.A.No.4838 of 2009 filed against affidavit in lieu of Examination in Chief in I.A.No.4130 in CMASR No.16352 of 2008 by directing the 1st respondent to first decide the maintainability of I.A.No.4130 of 2008 in CMASR. 16352 of 2008 filed by alienee pendent elite, with the doctrine of lis pendens and pass such other order or orders as are deemed fit and proper in the circumstances of the case.” Briefly stated, the facts of the case are as under: Petitioner herein filed suit for cancellation of sale deed and declaration in O.S.No.446 of 1994 on the file of the learned Principal Senior Civil Judge, Ranga Reddy District. The said suit was decreed by judgment and decree dated 27-09-2006. Defendants in the suit filed I.A.No.2402 of 2006 under Order IX Rule 13 of the Code of Civil Procedure, 1908, which is dismissed. The second respondent herein, who has purchased the property during the pendency of the suit, filed C.M.A. (Sr.) No.16352 of 2008 along with an application to condone the delay in I.A.No.4130 of 2008. In the said I.A., it is stated that the petitioner in the said application has filed affidavit in lieu of chief examination. At that stage, petitioner herein filed I.A.No.4838 of 2009 to reject the affidavit filed by the second respondent herein on the ground that such affidavit is filed without mentioning any provision of law; as such the same is not maintainable. The learned Principal District and Sessions Judge, Ranga Reddy District, by order dated 09-08-2010, rejected the application of the petitioner in I.A.No.4838 of 2009 recording a finding that evidence can be given by way of chief affidavit on oath in the I.A. also. The only argument advanced by the petitioner, who appeared in person, is that in absence of mentioning any provision of law in the affidavit filed by the second respondent herein, the learned Principal District Judge, by the impugned order, allowed the affidavit filed by the second respondent. It is contended that there is no power conferred on the lower appellate court to entertain such affidavit in lieu of chief examination and such affidavit can only be filed in the suit and not in an I.A. I have perused the order dated 09-08-2010 passed by the learned Principal District and Sessions Judge, Ranga Reddy District in I.A.No.4838 of 2009. It appears, in view of dismissal of the application filed under Order IX Rule 13 CPC to set aside the ex parte decree dated 27- 09-2006, the matter was carried in appeal by way of C.M.A., by the second respondent herein. As the C.M.A. was not preferred within the prescribed limitation period, the second respondent appears to have filed I.A.No.4130 of 2008 to condone the delay in filing such appeal. In the said I.A., an affidavit is filed by the second respondent in lieu of examination in chief. There is no need to mention any provision of law in the affidavit filed in lieu of examination in chief. In view of the provision under Order XVIII Rule 4 CPC, in every case, 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. In view of the clear language under Order XVIII Rule 4 CPC, the contention of the petitioner that there is no authority or jurisdiction vested in the lower appellate Court to accept the affidavit filed by the second respondent cannot be accepted. The second respondent is entitle to lead evidence in I.A. also, in which event, in view of the provision under Order XVIII Rule 4 CPC, it can be by way of affidavit in lieu of chief examination. The contention of the petitioner that such affidavit can be permitted only in the main suit, but not in the I.A., will run contrary to the plain language under Order XVIII Rule 4 CPC. In view of the said provision, learned Principal District and Sessions Judge rightly rejected the application filed by the petitioner in I.A.No.4838 of 2009. In view of the reasons assigned by the learned Principal District and Sessions Judge, I see no infirmity in the order dated 09-08-2010 passed in I.A.No.4838 of 2009. Moreover, it is to be seen that the dispute is purely of civil nature and there is no reason to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, leaving other alternative remedies provided under the Code of Civil Procedure, 1908, itself. Writ petition is wholly misconceived and is accordingly dismissed. No order as to costs. __________________ R. SUBHASH REDDY, J March 25, 2011 MRR