Case Note & Summary
A partnership firm filed a civil suit against the petitioners for delivery of possession and mesne profits. The suit was pending before the Civil Judge, Senior Division, Dhule. Respondent no. 1A, a partner of the plaintiff firm, filed her affidavit in lieu of examination-in-chief on 15.03.2010. The plaintiffs later moved an application (Exh.54) stating that respondent no. 1A was unwell and could not appear for cross-examination and that her husband Vasant, who looked after the firm's affairs, be permitted to tender evidence. The Civil Judge allowed this application on 03.10.2011, effectively cancelling the earlier affidavit of respondent no. 1A and allowing Vasant to file his affidavit. Vasant filed his affidavit on 17.03.2011. The original defendants (petitioners) then filed application Exh.66 contending that the plaintiffs had not filed any list of witnesses as required under Order XVI Rule 1 of the Code of Civil Procedure, 1908, nor obtained leave under Order XVI Rule 1(3) to examine a person not named in such list. They prayed for striking off Vasant's affidavit. The Civil Judge rejected Exh.66 on 16.01.2013, holding that leave had already been granted under Exh.54 and that plaintiffs, as masters of their suit, could examine any witness. The petitioners challenged both orders in the High Court through a writ petition. The primary legal issues were whether a civil court has the power to cancel evidence properly tendered by a witness, and whether leave under Order XVI Rule 1(3) of the Code of Civil Procedure could be granted without a list of witnesses and without recording sufficient cause. The petitioners argued that the trial court exceeded its jurisdiction by canceling the evidence, and that the procedural requirement of Order XVI Rule 1 was violated, causing prejudice. The respondents argued that the application Exh.54 should be liberally construed, and that the plaintiffs had the right to choose any witness. The High Court held that under the Indian Evidence Act, 1872 and the Oaths Act, 1969, once oral evidence is permitted and taken on oath, there is no provision allowing its withdrawal or cancellation. Cancellation would violate the duty to state truth under the Oaths Act and the presumption of correctness of sworn statements, and would contravene the equitable doctrine of election and estoppel which prohibits a party from approbating and reprobating. Thus, the Civil Judge had no jurisdiction to cancel respondent no. 1A's affidavit. Regarding the second issue, the Court held that Order XVI Rule 1(3) CPC mandates that leave to examine a person not named in the list of witnesses requires sufficient cause to be shown. The plaintiffs never filed any list of witnesses and the application Exh.54 did not seek leave under Rule 1(3) nor show cause. The trial court's order permitting Vasant's examination was therefore in violation of the procedural law and caused prejudice to the defendants. However, the Court directed that Vasant's affidavit be ignored in evidence rather than struck off, as the prayer to strike off was not the proper remedy. The writ petition was partly allowed; the impugned orders dated 03.10.2011 and 16.01.2013 were set aside to the extent they canceled respondent no. 1A's affidavit and permitted Vasant's affidavit. The trial court was directed to ignore Vasant's affidavit and proceed with the trial, treating the original affidavit of respondent no. 1A as properly on record and available for cross-examination. No order as to costs.
Headnote
A) Evidence Law - Cancellation of Tendered Evidence - No power of court to cancel properly tendered evidence - Indian Evidence Act, 1872 (Section 3), Oaths Act, 1969 (Sections 4, 8) - The Civil Judge allowed cancellation of the affidavit of respondent No.1A on the ground of ill-health, but there is no provision in law permitting withdrawal or cancellation of evidence once properly tendered. The Court held that such cancellation would amount to withdrawal of oath and violates the sanctity of oath under Section 8 of the Oaths Act, and also contravenes the equitable doctrine of election and estoppel which prohibits a party from approbating and reprobating. (Paras 7-10) B) Civil Procedure - Examination of Witness Not Listed - Requirement of leave under Order XVI Rule 1(3) CPC - Code of Civil Procedure, 1908, Order XVI Rule 1(3) - The Court held that to examine a person not named in the list of witnesses, the plaintiff must obtain leave of court by showing sufficient cause for omission. The Civil Judge granted such leave without any list of witnesses filed or sufficient cause shown, thereby violating the procedural requirement. The purpose of the rule is to give opposite party adequate notice; non-compliance caused prejudice to the defendants. Consequently, the affidavit of such witness should be ignored in evidence. (Paras 11-13)
Issue of Consideration
Whether a Civil Court can cancel properly tendered evidence of a witness; and whether leave under Order XVI Rule 1(3) of the Code of Civil Procedure can be granted to examine a person not named in the list of witnesses without recording sufficient cause
Final Decision
The writ petition was partly allowed. The impugned order dated 03.10.2011 passed below Exh.54 was quashed and set aside to the extent it canceled the affidavit of respondent No.1A and permitted her husband Vasant to file affidavit in lieu of examination-in-chief. The order dated 16.01.2013 rejecting Exh.66 was also set aside to the same extent. The trial court was directed to ignore the affidavit of Vasant and proceed with the trial, treating the earlier affidavit of respondent No.1A as properly on record and available for cross-examination. No order as to costs.
Law Points
- Legal points not extracted
- Evidence once properly tendered cannot be canceled
- Presumption of correctness of statements on oath
- Duty to state truth under Oaths Act
- Doctrine of election and estoppel prohibits approbation and reprobation
- Leave to examine a person not named in list of witnesses requires sufficient cause under Order XVI Rule 1(3) CPC
- Purpose of Order XVI Rule 1 is to give sufficient notice to opposite party
