Teja Singh vs Sarjeet Kaur and Others

Arun Bhansali, J.—This writ petition is directed against the order dated 12.2.2015 passed by the trial court, whereby the application filed by the petitioner for taking on record the affidavit of witness - Atma Ram under Order XVIII, Rule 4 CPC has been rejected. The witness-Atma Ram was summoned under Order XVI, Rule 1 CPC by the petitioner, however, when he was present before the Court on 5.1.2015 forgiving his statement, the petitioner dropped the said witness and expressed not to produce the said witness. Thereafter, on 27.1.2015, affidavit dated 29.9.2014 said to have been sworn by said Atma Ram was sought to be produced under Order XVIII, Rule 4 CPC, which was opposed by the respondents and after hearing the parties, the trial court rejected the application.

It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application under the provisions of Order XVIII, Rule 4 CPC, the petitioner is free to produce affidavit of any witness and whereafter the Court can examine as to what use the said affidavit under Order XVIII, Rule 4 CPC can be put to.

It is submitted that witness Atma Ram was produced by the petitioner, however, on account of the fact that he was won over by the respondents, he was dropped and whereafter as he had already sworn an affidavit, the same was produced. Reliance was placed on judgment of the Hon''ble Supreme Court in the case of Salem Advocate Bar Association Vs. Union of India (UOI), AIR 2003 SC 189 : (2003) 1 DMC 73 : (2002) 9 JT 175 : (2004) 8 SCALE 115 : (2003) 1 SCC 49 : (2003) 1 UJ 1 , wherein the procedure under Order XVIII, Rule 4 CPC as inserted by way of amendment made in the year 2002 in relation to the Order XVI, Rule 1 CPC have been explained.

Learned counsel for the respondents supported the order passed by the trial court.

I have heard learned counsel for the parties and perused the material placed on record.

Admittedly, the petitioner under the provisions of Order XVI, Rule 1 CPC summoned the said witness - Atma Ram and thereafter, for some reason chose not to examine him. However, thereafter, after almost three weeks, he produced an affidavit sworn almost four months back on 29.9.2014 before the trial court seeking to produce the same under Order XVIII, Rule 4 CPC i.e. his affidavit as examination-in-chief. Once the fact that the witness, who was summoned by the petitioner himself and had been dropped was available before the trial court, an affidavit which was sworn before the said date could not have been permitted to be produced, at least under Order XVIII, Rule 4 CPC so as to thereafter to be used by the petitioner as an affidavit of the said witness. Even otherwise, the said affidavit is absence of any cross-examination of said witness, that also on his production at the instance of the petitioner, was simply a waste paper.

In that view of the matter, the order passed by the trial court cannot be faulted. No interference is called for in the order impugned. The writ petition is dismissed.