Civil P.C. 1908, O.XIX R.1, O.XVIII R.4, O.XVI Rr.10 & 18 & O.XVI R.15 - O. XIX R. 1 does not empower the court to compel the parties to prove any particular fact by affidavit - Unless in exceptional circumstances where it is

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necessary to clarify certain things given by a witness in oral evidence, a witness cannot be compelled to file an affidavit.

Order XIX R.l of the CPC states that the Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit or any witness may be read at the hearing, on such conditions as the court thinks fit, provided that where it appears to the Court that either party bona ride desires the production of witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Ordinary Rule is that decision on facts must be decided on evidence recorded viva voce in court as provided by O.XVIII R.4. This procedure can be dispensed with only when either parties agree to a decision on affidavit. Thus, if both the parties agree then the affidavit would be substituted for evidence to be recorded otherwise an opportunity has to be given to one of the parties, the person who filed the affidavit. O.XIX R.1 only enables the court to order that any particular fact may be proved by affidavit. But it does not empower the court to compel the parties to do so. Further in cases where a witness can be produced the court shall make an order authorising the evidence of such witness by affidavit. Thus, according to me, the procedure adopted by the court below in directing the 4th petitioner to file affidavit is not correct. The 4th petitioner is only a witness. Unless in exceptional circumstances when it is necessary to clarify certain things even by a witness in oral evidence such witness cannot he compelled to file an affidavit.    (para. 4)

AIR 1960 SC 571 & AIR 1971 Mad. 436                     Followed

K.K. Mohammed Ravuf                                                  For Petitioners

K.T. Sankaran                                                                 For Respondent

ORDER

S. Sankarasubban, J.

This C.R.P. is filed against the order in I. A. 247/98 in O.S. 292/97 of the Munsiff’s Court, Tirur. Petitioners 1 to 3 are defendants 1 to 3 in O.S. 292/97 of the Munsiff’s Court, Tirur and the 4th petitioner is the witness No. 2 in the proceedings in I.A. 247/ 98. The respondent is the plaintiff. The first defendant is a society registered under the provisions of the Societies Registration.Act, second and third defendants are the President and Secretary of the Society respectively. According to plaintiff, he is the Khasi and Muthavalli of Mattathoor Valiya Juma-at-Mosque in Malappuram District. The defendants in the suit have disputed his right to continue as Khasi and Muthavalli and they are interfering with the management of the Mosque. Hence the suit was filed for a declaration that he is the Khasi and Muthavalli of the Mosque and he alone is entitled to manage the affairs of the Mosque and the defendants are not entitled to interfere with his functions as Khasi and Muthavalli. According to defendants, the plaintiff is not the Khasi and Muthavalli. The management of the affairs of the mosque

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is being done by the first defendant. The plaintiff had been removed from the Khasi ship. There was a proceeding before the Wakf Board and the Wakf Board removed the plaintiff from the Muthavalli ship. The plaintiff filed LA. 2450/97 under O.16 R. 6 of the CPC for a direction to a witness by name Konari Kunhi Mohamed, who is the 4th petitioner to produce his passport before the trial court. According to plaintiff, the minutes produced by the defendants in the suit will show that the 4th petitioner had attended the meeting of the Society and signed the minutes in 1997 July and August. But the plaintiff contended that during that time the 4th petitioner was not available in India and his signature was concocted. For proving that Konari Kunhi Mohamed was not available in India and the minutes were concocted, he filed I. A. 2450/97 calling upon the said Kunhi Mohamed to produce his passport. Summons was issued to the 4th petitioner. The 4th petitioner in pursuance of of the summons, appeared before the Court through counsel and filed an affidavit statingthat his passport was not available with him and it was sent to Mumbai for making necessary endorsements for getting visa. On 24.2.98 the Court passed an order directing the witness to file an additional affidavit stating whether he was available in India either on 25.7.97 or on 1.8.97. Thereafter the case was posted to 13.3.98. Subsequently since the 4th petitioner was not present, the court below has passed an order by which non-bailable warrant was issued against the 4th petitioner. It is attacking the above order, the revision petition is filed.

2. Learned Senior Counsel Sri. C.S. Ananthakrishna Iyer appearing for the petitioners submitted that the 4th petitioner was directed to produce the passport. Thus he was a witness to produce some document. Learned counsel submitted that 4th petitioner filed an affidavit stating that passport was not in his possession and that it was in the travel agent in Mumbai. Counsel submitted that when this affidavit was filed before the Court the purpose for which the 4th petitioner was summoned was achieved. If the Court was not satisfied with the affidavit filed by the 4th petitioner, then the Court could have directed the 4th petitioner to file another affidavit with regard to the passport. But in this case what happened was that when the witness filed an affidavit stating that the passport was not in his possession, counsel for the plaintiff wanted the Court to direct the witness to file an affidavit to show whether he was available in Kerala on certain particular days. Since the witness did not file such an affidavit, now warrant has been issued. Counsel submits that the procedure adopted by the Court below is illegal. The court has no power to direct the witness to file an affidavit. If the plaintiff wanted to give further evidence to show that witness was not present in Kerala, 4th petitioner should have been cited as witness to give oral evidence. A witness cannot be compelled to file an affidavit unless the parties agreed.

3. Learned counsel for the respondents submitted that even when the original summons was issued, 4th petitioner did not appear.s It was only after a proclamation was issued that he appeared. He further submitted that there was nothing wrong in the court below in directing the 4th petitioner to file an affidavit. He further submitted that

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against the order directing the 4th petitioner to file an affidavit, C.R.P. No. 503/98 was filed before this Court. But that was dismissed inlimine.

4. After hearing both sides, I am satisfied that the order of the court below is wrong. O. XVI of the C.P.C. deals with summoning and attendance of witnesses. Witnesses are summoned for two purposes; one for giving oral evidence and another for producing documents. O. XVI R. 15 states as follows:

“Whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a documentshall either attend to produce it, or cause it to be produced, at such time and place”.

Thus when a witness is summoned to produce a document, he has to produce the document in answer to that. If the document is not in his possession, he has to satisfy the court why he is not producing the document. In this case the witness filed an affidavit stating that the document was not with him. According to me, the duty of the witness ends there. If the Court was not satisfied with the affidavit, the court would have asked the witness to give further details as to when he will get back the passport or to give address of the person with whom he has entrusted the passport. But here the procedure adopted is different. On the day when he filed the affidavit, the court directed the witness to file an additional affidavit. But that was not with respect to a matter which was to be proved by the plaintiff. The question is whether a person like the 4th petitioner can be compelled to file an affidavit as is done in this case. Normally evidence is let in by oral evidence. O. XVIII R. 4 states that the evidence of the witnesses in attendence shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge. It is well known that before a person is directed to give evidence, summons should be issued to him, that he should give oral evidence. Further a person who wants to examine should file a list of witness that he wants to examine such and such persons. Admittedly in the present case the plaintiff did not file any list of witness to examine the 4th petitioner. Now let us consider the question whether the court can direct the 4th petitioner to file an affidavit Order XIX R. 1 of the CPC states that the Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit or any witness may be read at the hearing, on such conditions as the court thinks fit, provided that where it appears to the Court that either party bona fide desires the production of witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Ordinary Rule is that decision on facts must be decided on evidence recorded viva voce in court as provided by O. XVIII R. 4. This procedure can be dispensed with only when either parties agree to a decision on affidavit. Thus, if both the parties agree then the affidavit would be substituted for evidence to be recorded otherwise an opportunity has to be given to one of the parties, the person who filed the affidavit According to the decision

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reported in Khandesh Spinning and Weaving Mills Co. Ltd. v. Rashtriya Gimi Kamgar Sangh AIR 1960 SC 571 O. XIX R. 1 only enables the court to order that any particular fact may be proved by affidavit. But it does not empower the court to compel the parties to do so. Further in caseswhere a witness can be produced the court shall make an order authorising the evidence of such witness by affidavit. Thus, according to me, the procedure adopted by the court below in directing the 4th petitioner to file affidavit is not correct. The 4th petitioner is only a witness. Unless in exceptional circumstances when it is necessary to clarify certain things given by a witness in oral evidence such witness cannot be compelled to file an affidavit In a similar case arise. in M. Avansshiappa v. Muthulakshmi AIR 1971 Madras 436, the Madras High Court held as follows dealing with O.16.

“Rule 10 and 18 will apply only to cases where the witness neither appears before the court nor gives a lawful excuse for the non-production of the document. ‘Lawful excuse’ does not always mean an excuse acceptable to the court. Even if the court disbelieves the witness’s statement that he has lost the document in question and considers the excuse as not lawful, it cannot order arrest of the person.”

The dismissal of C.R.P. 503/98 does not in any way stand against the petitioners. The C.R.P. was dismissed on the ground that the order directing to file affidavit is not a case coming under S. 115. But so far as the present C.R.P. is concerned, non-filing affidavit has now resulted in the issuing of warrant against the 4th petitioner. Hence in the present case, it can be considered whether the direction of court to file an affidavit is correct or not The impugned order is set aside. TheC.R.P. is allowed