IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 11080 of 2009(O) -------------------------- OS.133/2002 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): ------------------------- EDEENA SUKUMARAN, W/O.UPPARAPERUMBARIL SUKUMARAN, BHEEMANAD AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON. RESPONDENT(S): ----------------------------- ALAVI HAJI,S/O.CHOLASSERRYIL AYIDRU MANKADA AMSOM, CHERIYAM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADVS. MR.P.VENUGOPAL, SMT.K.A.SANGEETHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11080/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.133/2002 ON THE FILE OF THE SUB COURT, OTTAPALAM. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.133/2002. P3: COPY OF THE CHIEF AFFIDAVIT OF SANKARA PILLAI DTD.13/09/2007. P4: COPY OF THE INTERIM ORDER DTD. 25/03/2009 IN WPC.NO.9683/2009. P5: COPY OF THE ORDER DTD. 23/03/09 PASSED BY THE SUB COURT, OTTAPALAM IN CHIEF EXAMINATION AFFIDAVIT OF SRI.SANKARA PILLAI IN O.S.NO.133/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.11080 of 2009 - O --------------------------------- Dated this the 30th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to Ext.P5 and to set aside the same. ii) To stay all further proceedings in O.S.No.133/2002 on the file of the Sub Court, Ottappalam.” 2. Petitioner is the plaintiff in O.S.No.133 of 2002 on the file of the Sub Court, Ottappalam. Suit is one for recovery of money based on an agreement. Suit claim was disputed by the defendant in his written statement contending that the agreement had been fabricated on blank signed papers obtained in respect of another transaction. Suit was once decreed exparte. An application moved by the defendant to set aside the exparte decree was dismissed by the trial court, but, reversed in F.A.O.No.205 of 2008 by this Court subject to terms. After setting aside the exparte decree and restoration of the suit the trial commenced. The plaintiff was examined as PW1. Examination of the attestors to the agreement by causing W.P.(C).No.11080 of 2009 - O 2 production of the chief affidavit of one of such attestors prepared when the case came up for trial previously was objected to by the defendant contending that the chief affidavit should be one prepared on the date when the witness is examined. Sustaining that objection, the court below passed Ext.P5 order rejecting the affidavit of the witness prepared earlier. Propriety, legality and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice given respondent/defendant has entered appearance through counsel. I heard the counsel on both sides. 4. Learned counsel appearing for the petitioners inviting my attention to Rule 4 of Order XVIII of the Code of Civil Procedure submitted the rule insist only for production of an affidavit of the witness, but, not the point of time the affidavit is to be prepared and filed towards the chief examination of the witness. In the facts and circumstances involved in the case where an exparte decree had been passed earlier in favour of the plaintiff, but, later reversed, it is the submission, the affidavit of the witness prepared previously deserve to be accepted towards W.P.(C).No.11080 of 2009 - O 3 the chief examination of the witness. According to the counsel the attestors to the agreement, including the witness sought to be examined, both of them had been won over by the defendant and in that context also the previous affidavit filed by one of them has crucial value in resolving the disputes arising for adjudication in the suit. So much so, the reception of the affidavit even assuming it cannot be received as sufficient for the chief examination of the witness, according to the counsel, was improper and incorrect. On the other hand learned counsel for the respondent would contend that even if the time of preparing of the affidavit is not specified by the rules when the witness is sought to be examined and an affidavit is filed towards chief examination of that witness it must have some nexus with the point of time he is examined before the court. Needless to point out that affidavit by itself is not evidence as per Section 1 of the Indian Evidence Act except where it is so provided by rules. When the rules contemplate reception of affidavit as evidence it has got significance and value. Rule 4 of Order XVIII of the Code of Civil Procedure permitting notice to the suit to lead evidence of the witness in respect of the examination in chief by affidavit is a W.P.(C).No.11080 of 2009 - O 4 new innovation to save the precious time of the court and brought in by Act 104 of 2002. The question posed for consideration is whether the affidavit that has to be presented towards the examination in chief of the witness should be one prepared on the date of his examination or earlier. That aspect cannot be looked in isolation, but, with reference to the totality of the facts and circumstances presented in the case. It is the case of the plaintiff that an affidavit was prepared toward chief examination of the witness at the time when the case was listed earlier, when an exparte decree was passed as the defendant remained absent. At that point of time the affidavit of the witness so prepared was not filed before the court since his examination was not warranted by the absence of the defendant. Very same affidavit sworn to by that witness was sought to be presented when the case again came up in the list after setting aside the exparte decree. The reasoning adopted by the court below is that such affidavit cannot be received towards examination in chief of that witness. The court has insisted for a fresh affidavit for examination of the witness for appreciating the facts and circumstance involved in the case. Plaintiff has a case W.P.(C).No.11080 of 2009 - O 5 that the witness has been won over the defendant and that circumstance should have been taken note of by the court in accepting the affidavit of the witness prepared earlier. Setting aside Ext.P5 order, I direct the court below to receive the affidavit ad permit the petitioner to examine that witness cited by him. It is submitted by the learned counsel for the petitioner after passing Ext.P5 order, evidence has been closed and the witness summoned by him dispensed. The court below shall reopen the evidence suo motu and on steps taken by the plaintiff, issue summons to the witness for his examination. The court below is also directed to expedite the trial of the suit and dispose it of at the earliest before closing of the courts for Christmas vacation. Hand over a copy of the judgment to the counsel on both sides and send a copy to the court concerned. S.S.SATHEESACHANDRAN, JUDGE. bkn/-