Case Note & Summary
The petitioner, Digambar Ramchandra Bawaskar, filed a writ petition before the Bombay High Court, Aurangabad Bench, challenging an order dated 5.12.2015 passed by the trial court in a civil suit. The petitioner had filed an affidavit in lieu of examination-in-chief on 4.11.2015, but before cross-examination could begin, he filed an application (Exhibit 17) on 18.11.2015 seeking leave to withdraw or discard the affidavit, claiming that paragraph (C) on page 3 contained a typographical error that inadvertently admitted documents favouring the defendants. The trial court rejected the application, relying on the decision in Banganga Cooperative Housing Society v. Vasanti Gajanan Nerurkar [2015 (5) Bom. C.R. 813], which held that an affidavit cannot be withdrawn once it becomes part of the record. The High Court framed the issue as whether an affidavit filed in lieu of examination-in-chief, prior to the verification of the plaintiff, amounts to oral evidence and becomes part of the record. The Court examined the legal position under Order 18 Rule 4 of the Code of Civil Procedure, 1908, and referred to its earlier decision in Bank of India v. M/s Allibhoy [AIR 2008 Bom. 81], which held that an affidavit in lieu of examination-in-chief does not become evidence until the deponent enters the witness box and verifies its contents. The Court distinguished the Banganga case, noting that in that case the witness had already been examined and cross-examined, whereas in the present case, the petitioner had not yet entered the witness box. The Court concluded that the affidavit was not part of the record and could be withdrawn. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and permitted the petitioner to withdraw the affidavit, with liberty to file a fresh affidavit in lieu of examination-in-chief.
Headnote
A) Civil Procedure Code - Order 18 Rule 4 - Affidavit in lieu of examination-in-chief - Withdrawal before cross-examination - An affidavit filed in lieu of examination-in-chief does not become part of the record until the deponent enters the witness box and verifies its contents - The trial court erred in relying on Banganga Cooperative Housing Society v. Vasanti Gajanan Nerurkar [2015 (5) Bom. C.R. 813] as that case dealt with a different situation where the witness had already been examined - Held that the petitioner could withdraw the affidavit as it was not yet part of the record (Paras 8-12).
Issue of Consideration
Whether an affidavit filed in lieu of examination-in-chief, before the witness enters the witness box for verification, can be withdrawn or discarded by the party filing it.
Final Decision
Writ petition allowed. Impugned order dated 5.12.2015 set aside. Petitioner is permitted to withdraw the affidavit in lieu of examination-in-chief dated 4.11.2015. Petitioner is at liberty to file a fresh affidavit in lieu of examination-in-chief.
Law Points
- affidavit in lieu of examination-in-chief
- withdrawal before cross-examination
- Order 18 Rule 4 CPC
- evidence not part of record until verification
- typographical error
- inadvertence
