ORDER
Pius C. Kuriakose, J.
1. Ext. P3 proceedings of the learned Munsiff permitting the plaintiff to file a counter-affidavit to the proof affidavit filed by the first defendant D.W. 1 in lieu of his chief-examination under Order XVIII, Rule 4(1) and ultimately rejecting Ext. PI proof affidavit on the ground that objection has been filed by the plaintiff to Ext. PI is under challenge in this petition under Article 227 of the Constitution initiated by the defendant.
2. I have heard the submissions of Sri D. Krishna Prasad, learned Counsel for the petitioner and those of Sri C. K. Sreejith, counsel for the 1st respondent plaintiff and Sri B. Parthasarathy, counsel for the 3rd respondent. Sri Krishna Prasad would refer to Sub-rule (1) of Rule 4 of Order XVIII, CPC and submit that there is no provision for permitting the opposite party to file counter -affidavit to an affidavit which has been filed by a witness in lieu of his chief-examination. Proviso to Sub rule (1) of Rule 4 of Order XVIII, in the opinion of the learned Counsel will indicate that the witness is given a free hand in the matter of filing affidavit in chief-examination except in the matter of proof and admissibility of the documents produced along with the affidavit.
3. According to the learned Counsel, it is obligatory under Sub-Rule (1) that all witnesses irrespective of whether they are brought on summons or produced by the party or are the parties themselves file affidavit in lieu of chief-examination and that copy of the affidavit is supplied to the opposite party so that the opposite party can cross-examine the witness either in the open Court or before a commissioner to be appointed by the Court.
4. It is difficult to accept the argument of. Sri. Krishna Prasad that it is obligatory that even witness who are appearing on summons shall file affidavit in lieu of chief-examination. In fact the issue is decided by the Supreme Court in Salem Advocate Bar Association v. Union of India : AIR2003SC189 . In that case their lordships have held that with regard to summoned witness the principles incorporated in Order XVIII, Rule 4 can be waived, and the question whether a witness present in the Court including a summoned witness should be directed to file an affidavit in lieu of chief-examination is a question to be answered by the Court in its discretion. Sri. M. Ramachandran, J. in Govindji Padashi v. Bhawanji Hasraj 2006 (3) KLT 1009 on the facts of that case, and relying on the judgment of the Supreme Court in Salem Bar Association's case set aside the order of a Subordinate Judge directing the filing of an affidavit by a summoned witness in lieu of chief-examination and directed the learned Subordinate Judge to take fresh decision as to whether the chief-examination of the witness also, be taken orally.
5. Sri. Krishna Prasad would cite the judgment of the Karnataka High Court in Drakshayini v. Gangawa 2005 (1) KLT SN Case No. 11 : AIR 2005 Kant 239. The full text of the judgment is not available and the view of the learned Judge as seen reported, that it is obligatory under Order XVIII, Rule 4(1) that all witnesses shall file proof affidavits cannot be good law, in view of the judgment of the Supreme Court in Salem Bar Association's : AIR2003SC189 (supra)
6. But the argument of Mr. Krishna Prasad that there is no provision for permitting the opposite party to file counter affidavits to the proof affidavit filed by a wit ness in lieu of his chief-examination has force. Order XVIII, Rule 4 insisting on filing of affidavit in chief-examination was introduced into the CPC by Act 46 of 1999 and again re-introduced by Act 22 of 2002 with the obvious object of saving valuable judicial time and thereby to expedite the trials. There is no provision permitting the filing of a counter-affidavit to affidavits filed under Sub rule (1) of Rule 4 of Order XVIII. Permitting the opposite party to file counter-affidavit to proof affidavits which may necessitate filing of reply affidavits also will be to defeat the legislative objective underlying the rule. But that does not mean that the witness, party or otherwise has the freedom to aver all irrelevant matters through the affidavits. The affidavits envisaged by Sub rule 1 of Rule of Order XVIII are affidavits in lieu of chief-examination or proof affidavits and such affidavits are expected to contain only matters which are relevant to the facts in issue in the suit or those relevant aspects which the witness endeavours to prove before the Court. It is always open to the opposite party to point out to the Court that irrelevant matters have been averred in the affidavit and once it is so pointed out the Court after considering the affidavit can either direct the deponent to file a fresh affidavit after eschewing the irrelevant matters or the Court itself can eschew the irrelevant matters averred through the affidavit, so that the cross-examination will be confined to relevant matters sought to be proved by the affidavit.
7. The learned Subordinate Judge was certainly wrong in posting the case for the filing of counter-affidavit to the proof affidavit and in rejecting the proof affidavit on the reason that the opposite party has filed objections. If the Court felt that irrelevant matters have been stated in the affidavit what the Court should have done was to direct the petitioner, a party witness appearing voluntarily, to file a fresh proof affidavit confined to the facts in issue in the suit. Since the affidavit is in lieu of chief-examination the entirety of the affidavit will come on record as part of the evidence. Therefore the question whether the averments in the proof affidavit are founded on pleadings or are otherwise relevant to the fact in issue will be pertinent.
8. In the instant case, concededly, a substantial portion of the affidavit filed by the petitioner related to another suit O.S. No. 386 of 2001 which had been filed by the 3rd respondent herein. In that suit the petitioner is the 2nd defendant and the 1st respondent, the plaintiff in the present suit was the 1st defendant. The case of the petitioner was that the present suit and its OS No. 386 of 2001 are intrinsically connected. In fact both those suits were ordered to be jointly tried but when the suits became ripe for trial the suit OS No. 386 of 2001 was dismissed for default of the plaintiff therein and the trial Court at that time passed the following order:
Plaintiff absent. Plaintiffs counsel reported no instructions. Defendants present. This suit is connected to OS No. 608 of 1999 and joint trial of both suits was allowed as per an application filed by the party. As per that order evidence is to be recorded in this case. The suit is dismissed with costs. This suit shall be clubbed with OS No. 608 of 1999 (the present suit)
9. In other words, even though the other suit was dismissed, the learned Judge retained the pleadings and documents filed in that suit along with the present suit. In view of the finality attained by the order of the joint trial of the two suits, the case of the petitioner that the averments in that suit and the issues which were raised in that suit will be relevant for a correct decision of the issues raised in these suits cannot be said to be totally wrong. But as matters obtain presently some of the averments in the affidavit rejected by the learned Subordinate Judge did not have any foundation in the pleadings raised by the petitioner. It will be difficult for any Court to accept evidence of a party not founded on the pleadings raised in the case. But I am informed that after the impugned order was passed an additional written statement has been filed by the petitioner under Order VIII, Rule 9 and the petitioner has filed IA No. 4111 of 2007 for leave to receive the same.
Under these circumstances, this Writ Petition will stand allowed, issuing the following directions:
i. The impugned order is set aside.
ii. The learned Munsiff will take an early decision of LA. No. 4111 of 2007 after inviting objections from the respondent and after hearing both sides. Once orders are passed, the learned Munsiff will re-consider the question of admissibility of the proof affidavit and pass fresh orders on that question. Fresh decision to be taken by the learned Munsif will be in the light of the observations contained in this judgment.