Indra Bagaria vs Balveer Kohli and Others

Pankaj Mithal, J.—Heard Sri Pipersenia, learned counsel for the petitioner and Sri Pradeep Verma, learned counsel appearing for respondent No. 1. The writ petition is directed against the rejection of petitioner''s application 257Ga seeking permission to prove the document dated 4.11.1997.

The submission of learned counsel for the petitioner is that as the evidence of petitioner has not been closed, petitioner can be permitted to prove the said document.

The court below has rejected the application on the ground that the petitioner has already filed his examination-in-chief on affidavit and, therefore, permission to record his evidence cannot be given.

Petitioner is not denying having filed his examination-in-chief on affidavit.

Affidavit is not part of evidence u/s 3 of the Evidence Act, 1872 but with the amendment in Order XVIII, Rule 4 of the C.P.C. examination-in-chief of a witness on affidavit has been made a rule rather than exception. Therefore, the documents relied upon or filed in evidence are to be referred and proved by the statements of the witnesses filed on affidavit in examination-in-chief,

The dual procedure of examination-in-chief, on affidavit as well as orally in court is not legally possible unless extremely necessary to get the truth ellicitated as it would otherwise add to the multiplicity of the procedure.

The submission is that the examination-in-chief filed on affidavit is incomplete and due to some inadvertence the reference to the said document has been omitted.

In such a situation, the remedy of the petitioner probably lies in presenting further or additional examination-in-chief on affidavit and not to seek his oral examination or to wait and get the witness re-examined after the cross-examination.

Learned counsel for the respondents submit that the permission for oral examination of the petitioner cannot be granted but in case petitioner wants to prove the said document he may file additional examination-in-chief on affidavit itself. In view of the aforesaid facts and circumstances and in the interest of justice, the writ petition is disposed of with the direction to the court below to permit the petitioner to file additional examination-in-chief on affidavit in relation to the aforesaid document dated 4.11.1997, paper No. 227Ga within a period of one month from today. The respondents would be free to cross-examine the witnesses of the petitioner on the above aspect also. The court below will make endeavor to decide the suit itself expeditiously keeping in view the earlier direction of this Court issued on 11.3.2002.