Gauhati High Court
Page No.# 1/6 vs M/S L.B. Medi Services Pvt Ltd on 28 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010270072022
2025:GAU-AS:6887
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/5/2023
TAPAN KALITA
S/O LATE TANKESWAR KALITA, R/O HOUSE NO. 9, RUPNAGAR, GANESH
MANDIR PATH, WARD NO. 23, GUWAHATI-781032, KAMRUP (M), ASSAM
VERSUS
M/S L.B. MEDI SERVICES PVT LTD
REGISTERED OFFICE - BARTHAKURS ASHRAY, BARTHAKUR MILL ROAD,
ULUBARI, GUWAHATI-781007, KAMRUP (M), ASSAM
Advocate for the Petitioner : Mr. N. Sharma, Advocate
Mr. B. K. Singha, Advocate
Advocate for the Respondent : Mr. S. Hazarika, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 28.05.2025
Date of Judgment : 28.05.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. N. Sharma, the learned counsel appearing on behalf
of the petitioner and Mr. S. Hazarika, the learned counsel who
appears on behalf of the respondents.
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2. The supervisory jurisdiction of this Court has been invoked
challenging the order dated 29.11.2022 passed in Title Suit
No.345/2015 whereby an application filed by the petitioner who
is the defendant in the suit seeking expunging of the evidence of
the plaintiff witness No.1 was rejected.
3. It is relevant to take note of that the respondent herein as
the plaintiff had filed the suit seeking declaration as well as for
recovery of compensation. The respondent admittedly is a
Company incorporated under the provisions of the Companies
Act, 1956. At the time of adducing evidence, the respondent
submitted the examination-in-chief by way of affidavit of 7
witnesses. Relevant herein is to take note of that the plaintiff
witness No.1 was an authorized representative of the plaintiff
and he had submitted his examination-in-chief by way of an
affidavit wherein he exhibited as many as 17 documents.
4. Pursuant to the filing of the examination-in-chief of those 7
witnesses on affidavit, the learned Trial Court endorsed the
recording of the evidence to the Advocate Commissioner and the
plaintiff witness No.1 was cross-examined on two dates and the
further cross-examination was reserved and the suit was fixed on
27.05.2022 for further cross-examination of the plaintiff witness
No.1. However, the said plaintiff witness No.1 was arrested and
could not appear any further before the Commissioner for
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recording of his evidence. The plaintiff filed a petition for closing
of the evidence of the plaintiff witness No.1. While the said
petition was pending, the petitioner herein who was the
defendant filed a petition bearing petition No.4331/2022 seeking
expunging of the entire examination-in-chief of the plaintiff
witness No.1 as well as the cross-examination, which was
rejected, and under such circumstances, the present proceedings
have been filed.
5. This Court has heard the learned counsels appearing on
behalf of the parties and has given an anxious consideration. A
conjoint reading of Rule 1, 2 & 4 of Order XVIII of the Code of
Civil Procedure, 1908 (for short, 'the Code') stipulates that the
party who has a right to begin shall file the examination-in-chief
of the witness(s) on affidavit and copies thereof shall be supplied
to the opposite party by the party who calls him/her/them for
evidence. It further stipulates that where documents are filed
and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with the
affidavit shall be subject to the orders to be passed by the Court.
A further perusal of Sub-Rule (2) of Order XVIII Rule 4 of the
Code stipulates that the evidence (cross-examination and re-
examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the
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Court shall be taken either by the Court or by the Commissioner
appointed by it. Therefore, it is clear that the examination-in-
chief of a witness which is required to be filed by way of an
affidavit cannot be treated as evidence unless the witness has
been cross-examined and if necessary re-examined or
opportunity has been provided to the opposite party to cross-
examine the witness.
6. It is seen on record that the plaintiff witness No.1 was only
partly cross-examined and thereupon the plaintiff witness No.1
did not appear. In fact, the plaintiff had also filed an application
for closing the evidence of the plaintiff witness No.1 on the
ground that the said witness would not be in a position to
appear.
7. The above aspect clearly shows that the petitioner herein
who was the defendant was not afforded an adequate
opportunity to cross-examine the plaintiff witness No.1. Under
such circumstances, the examination-in-chief so filed by way of
an affidavit cannot attain the status of evidence.
8. The learned counsel appearing on behalf of the plaintiff/the
respondent herein submitted that the plaintiff would suffer
irreparably if the entire evidence of the plaintiff witness No.1 is
struck off taking into account that the plaintiff witness No.1 had
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exhibited various documents and the other witnesses had not
exhibited any document.
9. Taking into account the above, this Court therefore disposes
of the instant proceedings with the following observations and
directions:-
(i) The examination-in-chief of the plaintiff witness No.1
cannot attain the status of evidence as the petitioner herein
who was the defendant in the suit was not given an
adequate opportunity for cross-examination of the plaintiff
witness No.1. Accordingly, as the examination-in-chief of
the plaintiff witness No.1 is stricken out from the records.
(ii) This Court also takes note of the difficulty which the
plaintiff would face with the striking out of the examination-
in-chief of the plaintiff witness No.1. Accordingly, this Court
for the ends of justice, permits the plaintiff to file a further
examination-in-chief by way of affidavit through the present
witnesses or any other witness so that the various
documents which the plaintiff seeks to adduce as evidence
can be exhibited.
(iii) It is seen that this Court vide an order dated
04.01.2023 had stayed the further proceedings of Title Suit
No.345/2015 pending before the Court of the learned Civil
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Judge No.3, Kamrup (M) at Guwahati. The said stay order
stands vacated and the parties are directed to appear
before the learned Trial Court,i.e, the Court of the learned
Civil Judge No.3, Kamrup (M) at Guwahati on 25.06.2025.
On the said date, the plaintiff is given an opportunity to file
the examination-in-chief of a further witness/witnesses
taking into account that the examination-in-chief of the
plaintiff witness No.1 has been stricken off.
JUDGE
Comparing Assistant
