Shri Om Prakash Shandilya And Anr. vs Sikander Lal
2006 Latest Caselaw 795 Del

JUDGMENT

Sanjiv Khanna, J.

1. The present Civil Revision Petition filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code, for short) is directed against the Order dated 17th January, 2005 dismissing the application of the petitioner under Order xviii Rule 4 of the Code.

2. The petitioners are defendants in the Suit for damages on account of defamation that has been filed by the respondent. The petitioners had filed their written statement and the case was fixed before the Trial Court for recording of evidence on 4th September, 2004 The respondent on 4th September, 2004 filed his affidavit by way of evidence. The same was examined by the Court at the time of filing itself and was returned back to the respondent with the observation that it should be refiled after necessary modification and changes. On the next date, i.e. 16th October, 2004 the respondent filed the affidavit by way of evidence and the same was taken on record by the learned Trial Court. On that date, i.e. 16th October, 2004 an objection was raised by the petitioners that the affidavit by way of evidence should not have been taken on record.

3. It is the case of the petitioners that on 16th October, 2004 they had objected to the affidavit by way of evidence being taken on record on the ground that the respondent could not be permitted and allowed to file the same as the learned Trial Court had on 4th September, 2004 rejected and returned the affidavit sought to be filed by the respondent. It is also the case of the petitioner that on 16th October, 2004, the learned Trial Court compelled them to cross-examine the respondent and thereafter the matter was adjourned to 18th November, 2004

4. The petitioners thereafter on or about 18th November, 2004 filed an application stating, inter alia, that there was no provision in the Code under which a party could be permitted and allowed to file affidavit by way of evidence twice. It was submitted that once the affidavit by way of evidence filed by the respondent was returned by the Trial Court vide order dated 4th September, 2004, the respondent could not have been permitted and allowed to file the ?second? affidavit by way of evidence.

5. This application was dismissed by the learned Trial Court by the impugned Order dated 17th January, 2005 on the ground that the affidavit presented for filing on 14th September, 2004 by the respondent was nothing but a verbatim copy of the plaint and accordingly the respondent was directed to file an affidavit by the Court itself incorporating facts and prove documents. Learned Trial Court also held that the affidavit that the respondent wanted to file was never taken on record. Accordingly, the application was dismissed.

6. I do not find any merit in the present Petition. Learned Trial Court has held that no affidavit by way of evidence was filed on 4th September, 2004 and no affidavit was taken on record. The affidavit that the respondent wanted to file, it was noticed was a verbatim copy of the plaint and accordingly on 4th September, 2004 the matter was adjourned and the Court directed the respondent to file a proper affidavit by way of evidence incorporating facts and to prove the documents relied upon by him. It cannot be said that the respondent had filed two affidavits by way of evidence. It is not the case of the petitioners that by filing affidavit by way of evidence, the respondent was/is seeking to prove facts not relied upon in the plaint or was/is trying to prove documents which are not part of the Trial Court record.

7.The impugned order passed by the ld. Trial court is just, fair and equitable. The petitioner did not object when the affidavit by way of evidence was returned by the court on 4th Sept. 2004 with permission to file an affidavit in accordance with law. Once permission was granted and direction was given, the petitioner cannot subsequently protest and challenge filing of the affidavit by way of evidence in terms of the earlier order. There is therefore no ground or reason for this Court to invoke and exercise its discretionary power under Section 115 of the code.

8. Moreover, Order dated 17th January, 2005 dismissing the application under Order xviii Rule 4 of the Code is an interlocutory order and in view of the proviso to Section 115 of the Code incorporated w.e.f. 1st July, 2002, the present Revision Petition is per se not maintainable. Reference in this regard may be made to the judgment of the Supreme Court in the case of Shiv Shakti Cooperative Housing Society v. Swaraj Developers and Ors. .

9. I have dealt with the merits of the matter because it was argued on behalf of the petitioners that the Revision Petition is maintainable and not barred under the proviso to Section 115 of the Code because if the affidavit by way of evidence filed on 16th October, 2004 was/is not taken on record, the suit filed by the respondent was liable to be dismissed. I need not dwell further into this question, in view of my findings on merits. The Civil Revision Petition is accordingly dismissed. However, there shall be no order as to costs.