Delhi High Court
Amrit Srinivasan vs Simrin Singh & Ors on 26 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th November, 2018
+ FAO(OS) 170/2018, CM Nos. 48425-48426/2018
AMRIT SRINIVASAN
..... Appellant
Through: MJr. Siddharth Yadav, Adv. with
Mr. Washim & Mr. Mohit, Advs.
versus
SIMRIN SINGH & ORS
..... Respondent
Through:
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM No. 48426/2018 (for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
FAO(OS) 170/2018
1. The present appeal has been filed by the appellant
challenging the order dated October 04, 2018 passed by the learned
Single Judge in CS(OS) No. 2258/2010 whereby the learned Single
Judge has allowed the PW 4 to withdraw his affidavit by way of
evidence and listed the matter before the Joint Registrar for
inspection of the relevant document i.e the original Will dated June
05, 1996 and permitted PW 4 to file a fresh affidavit by way of
evidence.
2. It is the submission of Mr. Siddharth Yadav, learned counsel
for the appellant that the procedure evolved by the learned Single
Judge is not in conformity with the provisions of the CPC and the
law laid down by the Bombay High Court in the case titled as
Banganga Cooperative Housing Society Ltd. v. Mrs. Vasanti
Gajanan Nerurkar 2015 SCC OnLine Bom 3411.
3. According to him, the learned Single Judge could not have
allowed withdrawal of the affidavit by way of evidence. At the
most, he should have permitted the PW 4 to see the relevant
document and file an additional affidavit, if any.
4. The aforesaid submission made by Mr. Yadav does not
impress us for the reason that the said procedure was evolved by the
learned Single Judge on a submission made by the learned Senior
Counsel appearing for the appellant before the learned Single Judge,
which is recorded in para 5, which we reproduce as under:-
"5. Learned senior counsel for defendants No.1 and 2
submits that the proper course in such cases is to first show
the relevant document to the witness and thereafter, permit
him to file the affidavit by way of evidence and the statement
of the witness with respect to the document has to be
incorporated in the affidavit itself."
5. In fact, the said order was passed by the learned Single
Judge in the Court. If the counsel for the appellant had any
objection with regard to the procedure evolved by the learned Single
Judge, he should have objected to it. During the course of
submission, Mr. Yadav has stated that it was never the case of the
appellant during the hearing before the learned Single Judge that the
PW 4 should be allowed to withdraw the affidavit by way of
evidence and file a fresh one. This submission of Mr. Yadav is not
borne out from the record. There is no averment made in the appeal
in that regard. The apprehension expressed by Mr. Yadav that PW
4 may resile from the affidavit earlier filed by him in the proceeding
is also misplaced, inasmuch as in para 10 of the order, the learned
Single Judge has stated as under:-
"10. As recorded in the order dated 11th January, 2017, the
filing of the fresh affidavit shall not be prejudicial to the
rights of the defendants to be refer to the affidavits being
permitted to be withdrawn for the purpose of cross-
examination of the witness.
The aforesaid conclusion of the learned Single Judge
protects the interest of the appellant.
6. Insofar as the plea of Mr. Yadav that the procedure evolved
by the learned Single Judge is not in accordance with the provisions
of CPC and the law laid down by the Bombay High Court in
Banganga Cooperative Housing Society Ltd. (supra), suffice it to
state that the Bombay High Court in the said case has held that once
an evidence affidavit is filed, the examination-in-chief of the
deponent has, for all intents and purposes, begun. It may be
permissible for the deponent to file a further affidavit, since Order
XVIII Rule 4 does not limit itself to a single affidavit. In other
words, there cannot be any withdrawal of evidence by way of
affidavit, just as there can never be withdrawal of examination in
chief recorded directly in Court.
7. Having noted the conclusion of the Bombay High Court, in
the facts of this case and in view of our conclusion above, we are of
the view, the reliance placed on the judgment is misplaced. The
interest of the appellant has been protected.
8. We do not see any merit in the present appeal. The same is
dismissed.
CM No. 48425/2018 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
NOVEMBER 26, 2018/ak
