Affidavit, whether consider as an Evidence?

Affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to other side as provided in Order 18 Rule 4 (2) of the CPC.

The question for consideration would be, whether the affidavit evidence of the plaintiff, which was not subjected to cross examination, can be said to be evidence within the meaning of Section 3 of the Evidence Act.

It is well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to other side as provided in Order 18 Rule 4 (2) of the CPC.

Reverting to the facts of the present case, ie. Premlal & Ors. vs. Kunti Bai & Ors., Second Appeal No. 132 of 2007 the Honourable High Court of Chhattisgarh in light of principle of law laid down by the Supreme Court in Ayaaubkhan Noorkhan, it is quite vivid that plaintiff-Kunti Bai filed an affidavit evidence under Order 18 Rule 4 of the CPC, but the defendants were not given opportunity to cross-examine her fully as after 26.8.2002 she failed to appear before the trial Court and consequently, the plaintiff’s opportunity to lead evidence was closed on 23.1.2004 and thereby, affidavit evidence of plaintiff-Kunti Bai filed under Order 18 Rule 4 of the CPC remained affidavit, as she was not subjected to full cross examination on behalf of the defendants. So, it would not be evidence within the meaning of Section 3 of the Evidence Act and using such evidence would be violative of principles of natural justice as right of cross-examination is an integral part of principle of natural justice and consequently, statement of Kunti Bai/plaintiff could not have been read as evidence by the trial Court as well as by the first appellate Court by granting decree in favour of the plaintiffs on the basis of said affidavit evidence as no other evidence was led by the plaintiffs. Both the Courts below were unjustified in granting decree relying upon affidavit statement of plaintiff-Kunti Bai, as such, decree passed by the trial Court as affirmed by the first appellate Court are liable to be set aside and hereby set aside and substantial question of law is answered accordingly.

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