Published on: 1 August 2023 at 10:57 IST
Court: High Court of Andra Pradesh
Citation: Rita Pandit V. Atul Pandit (2005)
Hon’ble High Court of Andra Pradesh has held that in a Civil Suit, the Examination-In-Chief of all the Witness must be tendered through the Affidavit before the Hon’ble Court. However where the witness is not under the control of the party who wants to examine him as a witness, recourse can be taken to Order 16, Rule 1 of the Code of Civil Procedure, 1908 and after being summoned by the Court, the witness can be asked either to file an Affidavit of Evidence or can be Examined in the Court.
7. 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 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 to 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 dependent when he appears before the Court for cross-examination. Going by the two judgments of the Supreme Court reported in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (1st supra) and Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2nd supra) we hold,
(1) that in all cases the examination-in-chief has to be conducted by way of affidavits;
(2) that in cases where the witness is not under the control of the party who wants to examine him as a witness, recourse can be taken to Order 16, Rule 1 of the Code of Civil Procedure and after taking recourse to Order 16, Rule 1 of CPC and after he is summoned by the Court, the witness can be asked either to file an affidavit or can be examined in the Court itself.
Drafted By Abhijit Mishra
