LAW FOR ALL

Order XVIII Rule 4 of C.P.C., has generated more problems, than what it proposes to solve; are in a way, fortified by this case. He filed an affidavit, in lieu of chief-examination (for short 'the affidavit'), as provided for under Rule 4 of Order XVIII C.P.C. On the basis of its contents, Ex.B-1 was marked, by the Court. Thereafter, the 1st respondent changed his advocate, and on his advise, he wanted to withdraw the affidavit filed earlier and substitute the same with another. For that purpose, he filed I.A.No.1233 of 2011, citing Rule 4 of Order XVIII C.P.C. The petitioner opposed the application. Obviously because the changed version of the 1st respondent was supporting his case, the 2nd respondent did not oppose the application. Through its order dated 26-08-2011, the trial Court allowed the I.A. The same is challenged in this C.R.P. - "An affidavit is merely an affidavit when it is filed in the Court. But when a witness appears for cross-examination, it is necessary for the witness either to confirm or differ with the contents of the affidavit. After his confirmation or denial of the contents of affidavit, whatever recorded is the evidence and if the witness confirms the affidavit, the affidavit would become part of the statement made by the deponent before the Court. Therefore what is finally taken as evidence by the Court is not the affidavit, but what is contained in the affidavit, if confirmed by the deponent when he appears before the Court for cross-examination. - If an affidavit has already become part of record, alteration or substitution thereof would be nothing but that of the chief-examination itself. In the instant case, the trial Court proceeded on the assumption that the affidavit did not become part of record, because DW-1 was not cross-examined. Such an approach is untenable, in view of the fact that the affidavit was acted upon and a document mentioned therein was given marking. If the affidavit filed were to have been permitted to be withdrawn, the fate of the document marked on its basis would hang in a limbo. The reason in that there is no process of demarking a document, once marked.