1|f!-.s^-'. wg^' '^s^' HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: Appellant Hon' ble Shri Dhirendra Mishra, & Hon' ble Shri R.N. Chandrakar, JJ First Appeal (M) No. 77 of 2007 Urmila Agrawal, w/o. Sunil Kumar Agrawal, aged 28 years, r/o. HIGB/77, "A" Sector, Vidhya Nagar, Bhopal, M.P. Vs. Res^ondent Sunil Kumar Agrawal, S/o. O.P. Agrawal, s/o. O.P. Agrawal, aged 38 years, r/o. Near Ram Leela Maidan, Opp. Municipal School, Raigarh, Tehsil & District Raigarh (CG). (FirstAppeal underSection 19(1) ofthe Family Court Act, 1984) Present: Shri R.K. Agrawal, counsel forthe appellant. None for the respondent. Oral Order (Passed on this 8th day ofAprit, 2010) Per Dhirendra Mishra, J. On 18-2-2010 on the request of learned counsel for the respondent, he was allowed four weeks' time to argue the matter ap^the m^tter was posted for further hearing on 8-4-2010. Today also when the matter was called-for the second time, none appeared on behalf of the respondent. — 2) The appellant/wife has preferred this appeal against the judgment and decree dated 29-8-2007 passed by the learned Judge, Family Court, Raigarh in Civil Suit No. 7-A/2007, whereby the suit of the respondent/husband under Section 13 ofthe Hindu Marriage Act, 1955, 'l- 1'fsg!"^/ has been decreed and the marriage dated 24-6-2004 between the parties has been annulled with a decree of divorce. 3) Apart from other grounds, learned counsel for the appellant has also drawn our attention towards the order sheet dated 23-7-2007 of the Family Court and submitted that evidence on affidavits was filed by the respondenVwife on that day. The husband had filed his affidavit on 22-6- 2007 with a copy to the appellant herein. However, the learned Family Court without affording any opportunity of cross examination to the parties posted the matter for final arguments on 10-8-2007 and thereafter the impugned judgment was delivered on 29-8-2007. 4) We have heard learned counsel for the appellant and perused the record of the Family. 5) We find that after receiving the evidence on affidavits from the respective parties, the Family Court did not fix the matter for further evidence and delivered the judgment on the basis of the evidence adduced through affidavits, after hearing the final arguments. The procedure adopted by the learned Family Court is contrary to the procedure prescribed under Order 18 Rule 4 of Code of Civil Proc'edure (for ,short, "the Code"). Order 18 Rule 4, sub Rule (1) of the Code stipulates that in every case, the examination-in-chief of a witness shall be.an affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence and sub Rule (2) of Rule 4 of Order 18 of the Code further provides that the evidence (cross- examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the ^t^w.Wt-dwm:.-"^'''"' 'f. %. Court, shall be taken either by the Court or by the Commissioner appointed by it. 6) In the instant case, the examination of the order sheets of the Family Court reveals that the Family Court did not call upon the parties to produce their witnesses for cross examination and re-examination whose examination-in-chief under Order 18 Rule 4 (1) of the Code, was recorded on affidavit. Examination-in-chief of a witness on affidavit without .-their examination and re-examination under Order 18 Rule 4 (2) of the Code is incomplete and the same cannot be read in evidence. 7) For the aforesaid reasons, we allow the appeal, set aside the impugned judgment and decree passed by learned Family Court and remand the matter to the learned Family Court for fresh adjudication with a direction to afford an opportunity of adducing evidence to the parties. 8) The appellant herein is directed to appear before the learned Family Court on 26-4-2010. The learned Family Court shall issue a notice to the respondent/applicant for further date of hearing for his appearance before the Court. Sd/- Dhirendra Mishra Judge Sd/- Rangnath Ctandrakar re r7 M- Raju