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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST 2015
BEFORE
THE HON’BLE MRS.JUSTICE RATHNAKALA
WRIT PETITION NO.49943 OF 2013 (GM-CPC)
BETWEEN:
AUGUST VENTURES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO.17/1, CAMPBELL ROAD BANGALORE – 560 047 REPRESENTED BY ITS MANAGING DIRECTOR MR.BIJU P JOHN.
...PETITIONER
(BY SRI G.S.BHAT, ADV.)
AND:
UNION OF INDIA THE SECRETARY DEPARTMENT OF REVENUE MINISTRY OF FINANCE NO.128-B, NORTH BLOCK LOK NAYAK BHAVAN NEW DELHI – 110 001
THE CHIEF COMMISSIONER OF INCOME TAX CENTRAL REVENUE BUILDING QUEENS ROAD
2 BANGALORE – 560 001
...RESPONDENTS
(BY SRI C.G.SHASHIVARDHAN, ADV. FOR CGSC FOR R1; SRI K.V.ARAVIND, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATE 19.09.2013 IN I.A.NO. NIL IN O.S.NO.1970/2009 PENDING BEFORE THE COURT OF XVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) VIDE ANNEX-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioner herein is the plaintiff in O.S.No.1970/2009 on the file of the XXVII Additional City Civil Judge, Bangalore.
The suit was filed for the relief of recovery of money. The case was contested. After the closure of the plaintiff’s evidence, on behalf of the defendants, DW-1/Commissioner of Income-Tax placed his examination-in-chief evidence by way of affidavit on 22.3.2013 and marked documents. At the request of the plaintiff, the case was posted to further date for his cross-
3 examination. At that stage, the defendant filed application as at Annexure-D seeking to recall the order dated 22.3.2013 and to discard the evidence of DW-1 and permit fresh affidavit evidence. The application was contested by the plaintiff.
The court after hearing the parties passed orders as at Annexure-A and the relevant lines from the said order reads thus: “Admittedly, the application is filed when the matter is posted for cross-examination of DW.1 and the probable transfer of official cannot be ruled out. Under the circumstances, defendant can very well adduce the evidence of his successor without discarding the earlier evidence and the application is disposed of accordingly.”
As such, oral evidence as contemplated in Section 3 of the Indian Evidence Act, 1872 is: “Evidence”- “Evidence” means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; . . . .”
4 Section 138 of the said Act lays down the manner of examining a particular witness and creates three distinct rights: 1) Examination- in-chief; 2) Cross-examination 3) Re-examination. The right of cross- examination available to opposite party is a distinct and independent right. The plaintiff on its own since not tendered for cross-examination thereby curtailing the right of cross-examination of opposite party, it is not a complete statement/evidence of the witness and the Trial Court was bound to discard his affidavit evidence on its own.
Though the plaintiff itself has sought to discard the examination-in-chief evidence, the Court in violation of the procedure contemplated by statute by its order at Annexure-A preserves the examination-in-chief evidence, has not passed through the test of cross-examination as the evidence on record. That is erroneous and such incomplete evidence cannot be acted upon.
Accordingly, the Writ Petition is allowed.
5 The order dated 19.9.2013 passed in O.S.No.1970/2009 on the file of the XXVII Additional City Civil Judge, Bangalore, as at Annexure-A, is hereby set aside.
The examination-in-chief evidence of PW-1 is discarded.
Sd/-
JUDGE
KNM/-