CR No.7809 of 2009 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7809 of 2009 Date of decision:14.02.2011. Smt. Kulwant Kaur Padda ...Petitioner Versus State Bank of Patiala ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Chetan Mittal, Senior Advocate, with Mr. Mohinder Nain, Advocate, for the petitioner. Mr. C.B.Goel, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against the order dated 18.12.2009 passed by the learned Rent Controller, Bathinda by which affidavit dated 03.08.2009 (Ex.P1/A) filed by the petitioner/landlady Kulwant Kaur in her examination-in-chief has been ordered to be de-exhibited. In brief, the petitioner/landlady filed a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] on 19.11.2008 to seek eviction of the respondent from the demised premises, in which initially an application filed by the respondent for leave to defend was dismissed on 12.03.2009 and the order of eviction was passed, but that order was reversed by this Court in CR No.1821 of 2009, decided on 18.05.2009, with a direction to the learned Rent Controller to decide the case within six months. Consequently, written statement was filed by the respondent and while leading her evidence, the petitioner/landlady filed her affidavit in examination-in-chief, on which she was cross-examined. Thereafter, the respondent examined their witnesses and after the evidence of both the parties, case was fixed for arguments. At this stage, the CR No.7809 of 2009 -2- ***** respondent filed two applications, one for de-exhibiting the affidavit (Ex.P1/A) and to be marked the same as Mark `X' on the ground that it has not been attested in accordance with law and the other for production of rent deed. Application for de-exhibiting the affidavit (Ex.P1/A) has been allowed by the impugned order which led to filing of the present revision petition. While passing the impugned order, the learned Rent Controller had recorded that the affidavit (Ex.P1/A) was attested on 10.07.2009 but the petitioner/landlady was not present in India at that time as she had herself admitted that she left India for USA in March 2009 and returned on 29.07.2009. Thus, she did not appear before the Oath Commissioner at the time of attestation of her affidavit (Ex.P1/A) which has been tendered in evidence as her examination-in- chief in terms of Order 18 Rule 4(1) of the Code of Civil Procedure, 1908 [for short “CPC”]. Learned counsel for the petitioner has argued that question of attestation of the affidavit pales into insignificance once the petitioner herself had appeared in Court and made the statement on solemn affirmation (SA) specifically alleging that her affidavit be read as part of her evidence before initiation of the cross-examination. In support of his submission, he has relied upon a decision of this Court rendered in the case of Surinder Gupta Vs. Hukam Chand, 2009(1) RCR(Rent) 541 and a Full Bench judgment of the Andhra Pradesh High Court rendered in the case of Rita Pandit Vs. Atul Pandit, 2005(2) RCR(Civil) 504. On the other hand, learned counsel for the respondent has submitted that the petitioner, while appearing as PW1, had got recorded her statement on solemn affirmation stating that “I submit my affidavit Ex.P1/A in my evidence” and then “the same be read as part of my evidence”. It is submitted that the question is not that the petitioner had appeared in the witness box and acknowledged the affidavit which was tendered in Court as her examination-in-chief in terms of Order 18 Rule 4(1) of the CPC, but the question is whether it was at all an affidavit in the eyes of law? In this regard, it is submitted that Section 139, Order 18 Rule 4 of the CPC and Chapter 12 Part A&B Volume 4 of the Rules and Orders of Punjab and Haryana High Court [for short “Rules & Orders”] are required to be appreciated. It is submitted that earlier to Code of Civil Procedure (Amendment) Act, 2002, which is in force w.e.f. 01.07.2002, Order 18 Rule 4 of the CPC was CR No.7809 of 2009 -3- ***** “Witness to be examined in open Court.-- The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge”, but after the amendment in 2002, Order 18 Rule 4 of the CPC reads as under: - “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 alongwith affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and re- examination) 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: (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: CR No.7809 of 2009 -4- ***** Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under rule.” Since Order 18 Rule 4(1) of the CPC provides that 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, the oral evidence in examination-in-chief is replaced by an affidavit which is to be prepared in terms of Order 19 of the CPC and oath on affidavit is to be administered in terms of Section 139(b) of the CPC. In this case, as the oath is administered by the Oath Commissioner, who is appointed in terms of Section 139 (b) of the CPC, the provisions of Chapter 12 Part A&B Volume 4 of the Rules & Orders are required to be considered. It is further submitted that Part A of Chapter 12 Volume 4 of the Rules & Orders deals with oaths and affirmations and Part B deals with affidavits. In case of a person who is a Hindu and has deposed on solemn affirmation, the oath is provided in Form-1 when he appears as a witness in civil case, which reads as under: - “I solemnly affirm, in the presence of Almighty GOD CR No.7809 of 2009 -5- ***** that the evidence which I shall give to the Court (or as the case may be) in this case (or matter) shall be the truth, the whole truth, and nothing but the truth.' In respect of affidavit, it is submitted that Clause 5 of Part B Chapter 12 Volume 4 of the Rules & Orders deals with the appointment of Commissioners for the purpose of administering oath and a complete procedure is provided as to how the oath is to be taken before the Oath Commissioner. In this regard, attention of the Court is drawn to Clause 11 of Part B Chapter 12 Volume 4 of the Rules & Orders, which deals with identification of deponent, and reads as under: - “11. Identification of deponent.-- Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him; and such Court, Magistrate or officer shall specify, at the foot of the affidavit, the name and description of the person by whom the identification is made, as well as the time and place of the identification and of the making of the affidavit.” Clause 15 of Part B Chapter 12 Volume 4 of the Rules and Orders further provides that “every affidavit shall be signed or marked and verified at foot by the deponent and attested by the Court, Magistrate, or other officer administering the oath or affirmation. Every page of the affidavit shall be signed by the deponent and initialled by the attesting Officer. The verification by the deponent shall be in one of the forms attached hereto, and shall be signed or marked by the deponent. The attestation of the Court, Magistrate, or other officer administering the oath or affirmation shall also be in the form prescribed below”. It is further submitted that a complete check and balance is provided in the Rules contained in Part B Chapter 12 Volume 4 of the Rules and Orders pertaining to affidavits so that an impostor may not become affiant to sworn an affidavit- “which means a written statement affirming by oath or affirmation for use as evidence in Court”. I have heard both learned counsel for the parties and perused the CR No.7809 of 2009 -6- ***** record with their able assistance. The admitted facts are as under: i) Affidavit dated 10.07.2009 (Ex.P1/A) is purported to have been sworn by the petitioner Kulwant Kaur Padda; ii) She was allegedly identified by Shri Amandeep, Advocate of Bathinda; iii) The affidavit was attested by Mahesh Kumar, Oath Commissioner, Bathinda; iv) While appearing as PW1, petitioner Kulwant Kaur admitted in her cross-examination that she was not present in India on 10.07.2009 because she left for USA in March 2009 and returned to India on 29.07.2009; v) Petitioner has admitted in her cross-examination that in July 2009 she had not appeared before Mahesh Kumar, Oath Commissioner; and vi) While appearing as PW1, the petitioner had owned the affidavit Ex.P1/A. The question is thus whether it is an affidavit in the eyes of law and the judgments relied upon by learned counsel for the petitioner are at all applicable to the facts and circumstances of this case. The Full Bench of the Andhra Pradesh High Court in Rita Pandit's case (supra) was seized of an issue of conflict between Rules 4 and 5 of Order 18 of the CPC, in which it was held that “(1) that in all cases the examination-in-chief has to be conducted by way of affidavits and (2) that in cases where the witness is not under the control of the party who wants to examine him as a witness, recourse can be taken to Order 16 Rule 1 of the Code of Civil Procedure and after taking recourse to Order 16 Rule 1 of CPC and after he is summoned by the Court, the witness can be asked either to file an affidavit or can be examined in the Court itself”. In Surinder Gupta's case (supra), in which the dispute was with regard to verification of the affidavit not being in conformity with the provisions of Order 19 of CPC, it was held that the objection with regard to the manner of drafting of affidavit without proper verification would become irrelevant if the contents of affidavit were subjected to lengthy cross-examination and case is CR No.7809 of 2009 -7- ***** decided not merely on the basis of affidavits but on the basis of evidence that flows out of cross-examination as well as the averments in the affidavits. Incidentally, this is not the dispute in the present case. The dispute raked up by the respondent is by moving an application for de-exhibiting the affidavit Ex.P1/A on the ground that it is not an affidavit in the eyes of law as it has not been sworn by the petitioner. As I have already mentioned that the affidavit means a written statement affirming by oath or affirmation for use as evidence in Court and a complete procedure is provided in the Rules and Orders for preparation of an affidavit that it has to be sworn before an authority duly appointed by the High Court. In the present case, the affidavit is sworn before the Oath Commissioner, who is appointed as per Rules framed in Part B Chapter 12 Volume 4 of the Rules and Orders, after having been identified by a person known to the affiant. Admittedly, the affiant was not present in India and had not appeared before the Oath Commissioner, then the question arises as to who had appeared before the Oath Commissioner and had signed the document named as affidavit and whether there is any sanctity of Rule of identification and of attestation by the Oath Commissioner or is it not a case of fraud having been played by the petitioner, along with the Advocate who had identified her before the Oath Commissioner. To my mind, time has come when the Courts are required to put their foot down to curb this menace of filing false documents in Courts much-less affidavits, on the basis of which most of the litigation is being decided as the affidavits are taken into account as evidence of the parties. The unscrupulous litigants are taking the Courts for a ride and have scant respect for the procedure of law because of general belief “who bothers”. If this kind of document, which is in no-way can be called an affidavit, is allowed to be taken on record in the name of the practice having been going on in the judicial system, then the entire sanctity attached to the affidavit would vanish and faith of the general public in the judicial system would be eroded. In this background, various questions have cropped up which require immediate answer: i) whether the alleged affidavit (Ex.P1/A), which is not signed by the petitioner as she was not in India at that time, is a forged CR No.7809 of 2009 -8- ***** document; ii) whether Shri Amandeep, Advocate of Bathinda, who alleged to have identified the person who had signed the document/affidavit (Ex.P1/A) as the petitioner though she was actually not there, has committed an offence of forgery and is guilty of professional misconduct; iii) whether the petitioner has also committed an offence in accepting the document/affidavit (Ex.P1/A) as her own affidavit though it is not signed by her and has also committed an offence by giving false evidence; Needless to mention that the Court, before whom the alleged false evidence has been led or the forgery has been committed, is competent enough and is directed to take appropriate action in accordance with law against the persons involved in it. Insofar as the document Ex.P1/A is concerned, it is held that it is not an affidavit in the eyes of law because an affidavit is necessarily needed to be signed by the affiant, prepared in terms of Order 19 of the CPC and is required to be attested in accordance with Section 139 of the CPC or the Rules and Orders. Therefore, document Ex.P1/A cannot be called to be an affidavit and has rightly not been taken into consideration by the learned Rent Controller while passing the impugned order. Thus, I do not find any error in the impugned order passed by the learned Court below and as such the present revision petition is hereby dismissed with costs throughout. February 14, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE