Affidavit filed under Or. 18 R. 4 CPC is not “evidence” within S. 3 of Evidence Act unless deponent is subjected to cross-examination

Premlal Vs Kunti Bai

Chhattisgarh HC

11/09/2019

Second Appeal No.132 of 2007

About/from the judgment:

The court allowed a second appeal against the order of the trial court as well as the First Appellate Court whereby the suit brought by the plaintiffs (respondents herein) for declaration of title, permanent injunction, partition and possession of the suit property was decreed.

It is pertinent to note that during the pendency of the said suit, affidavit-evidence under Order 18 Rule 4 CPC (recording of evidence) was filed by the plaintiffs. On two subsequent dates when the matter was posted, the plaintiff — Kunti Bai — was partly cross-examined. However, after that, she could not appear before the trial court though the matter was fixed for evidence from time to time. Ultimately, her opportunity to lead evidence was closed and thereafter, the suit was decreed in favour of the plaintiffs.

The question for consideration of the High Court was whether the affidavit-evidence of the Kunti Bai, which was not subjected to cross-examination, could be said to be “evidence” within the meaning of Section 3 (interpretation clause) of the Evidence Act.

The Court was of the opinion that a careful perusal of Section 3 would show that the affidavit is not included in the definition of “evidence”, and can be used only if the Court permits it for sufficient reasons. An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

In the instant case, since the defendants did not get a proper opportunity to cross-examine Kunti Bai, the court held that the affidavit filed by her under Order 18 Rule 4 remained an affidavit and did not turn into evidence. In such view of the matter, the impugned order was set aside and the matter was remanded back to the trial court to give an opportunity to the defendants to cross-examine Kunti Bai and other prosecution witnesses.

Read the Judgment

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