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Judgment
R.M. Savant, J.—Rule made returnable forthwith and heard.
This Petition takes exception to the order dated 28.4.2009, passed by the learned Civil Judge Junior Division, Bicholim, by which order the affidavit sought to be produced on behalf of the Petitioner/Plaintiff which affidavit is of one Crishna Narayan Pilyenkar so that it can be marked as an Exhibit came to be rejected by the Trial Court.
The Plaintiff has filed Regular Civil Suit No. 52/1999/C for a declaration that the Respondent who is the Defendant in the said suit was not a tenant in respect of the suit property surveyed under No. 3 subdivision 1 of Velguem Village, and for consequential relief of deletion of his name from the record of rights. In the said suit a reference was made to the Mamlatdar referring the said issue of tenancy, the said proceedings were dismissed for default as the said proceedings were not pursued by the Respondent. In the said suit the Plaintiff during the examination in chief produced the affidavit of one Crishna Narayan Pilyenkar sworn before the Executive Magistrate. The said production of the affidavit was objected to by the Defendants on the ground that the affidavit is not a document and besides it is not permissible under Order 19 Rule 1 and 2 of C.P.C. and that the affidavit being a previous statement can be used only for the purpose of contradicting the person who has sworn the affidavit.
The Trial Court considered the said question and answered it against the Plaintiff by observing that the said affidavit cannot be produced by the Plaintiff in his evidence but he can confront the Defendant with the said affidavit when he leads the evidence, and that the said affidavit can only be used for contradicting the witness on the same. The Trial Court further relying upon the judgment of the Supreme Court in Sudha Devi Vs. M.P. Narayanan and Others, and relying upon the obiter dicta in the said judgment held that the affidavits are not the documents and thereby answered the question against the Plaintiff.
This Petition had come up for admission on 16.9.2009 when notice for final disposal was issued returnable on 9.11.2009. In para 2 of the order dated 16.9.2009 it has been observed by this Court that if the Defendants agree for the production of the affidavit in relation to which the impugned order has been passed and exhibited, suit can be proceeded with.
The learned Senior Counsel for the Petitioner states that the Respondents have not agreed to the production of the said affidavit and therefore this Petition would have to be considered.
In my view, the Trial Court ought not to have answered the said question against the Plaintiff i.e. the Petitioner herein as regards the production of the said affidavit. Looking to the contents of the said affidavit, the same according to the Petitioner/Plaintiff constitutes admission on the part of the Defendants of the facts stated therein and therefore the Plaintiff sought to rely upon the same. The case of the Plaintiff is also that the said affidavit constitutes substantive evidence against the Defendants who have made the said admissions by swearing the said affidavit. In my view, the evidentiary value of the said affidavit could have been considered by the Trial Court at the appropriate time but the Plaintiff could not have been refused the permission to produce the said affidavit on the grounds mentioned in the impugned order.
In that view of the matter, the impugned order dated 28.4.2009 is required to be set aside and the Petitioner i.e. the Plaintiff would be entitled to produce the said affidavit, however, it is made clear that the evidentiary value of the said affidavit would be considered by the Trial Court at the Trial of the said suit.
Rule is accordingly made absolute in the aforesaid terms.