Civil Procedure Code (CPC)

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Samir N (2HelpU) (Business)     29 July 2021

Value of affidavit after provider's death and before cross

I have an affidavit from a relatively elderly person.  He may not live until his cross-examination given the state of the Courts in the pandemic.

Will his affidavit have any value at all if he dies before his cross-examination?



 8 Replies

Dr J C Vashista (Lawyer)     30 July 2021

The affidavit of examination-in-chief shall have to be tendered and cross-examination is right of adverse party otherwise, there is no value of affidavit.

While examination in chief brings forth in brief one side of a case, probably, biased, interested and even false, cross-examination brings forth the undisclosed facts.

Section 138 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act"), deals with the Order of examinations, i.e. the witness shall be first examined-in-chief, then cross-examined and if required later to be re-examined by the party calling witness. Section 137 of the Evidence Act defines 'Examination-in-Chief' as examination of a witness by the party who calls him for giving evidence. The examination of that witness by the adverse party is called 'cross-examination'. The examination of that witness subsequent to the cross-examination, by the Party who called him is called 're-examination'.

Raj Kumar Makkad   30 July 2021

If the old man expires prior to his examination in the Court on the basis of the affidavit in question, the same shall no value, however, if the same is duly notarized then its contents can definitely be taken into consideration subject to all other relevant factors,

1 Like

G.L.N. Prasad (Retired employee.)     30 July 2021

1. The Plaintiff's examination in chief is completed by filing an affidavit, cross-examination is also completed/closed

2. But one of the defendants who was declared expartee, enters into the picture by filing a written statement and demands cross-examination of the plaintiff, and the court permitted for such cross-examination.

3.Before the cross-examination by that defendant, ,  the plaintiff expired due to Covid,

4.Whether the examination, cross-examination (by other defendants) of the deceased plaintiff is valid.is as it was is taken on record

5. The transposed legal heir of the plaintiff has to undergo examination in chief and has to be cross-examined once again.

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Shubham Bhardwaj (Practice)     30 July 2021

Dear Mr Samir, 

The query is incomplete as lot of information is not provided. There are multiple possibilities in your query however I will try to answer it to the best of my capability. 

1. Firstly, an affidavit has no evidentiary value under the Indian Evidence Act, 1872 unless permitted by the Court to be filed under Order XIX CPC. This is true even for criminal trials where affidavit is taken only for evidence of formal character. (please refer Section 1 & 295 & 296 Cr PC

2. If the affidavit that you are referring to is an Affidavit for Examination in Chief of a witness, then if the deponent dies before his cross, the evidentiary value would be hit and plaintiff will have to prove his case by other evidence.

3. If the affidavit is Examination in chief of the Plaintiff himself and the plaintiff dies before his cross  then this would be a death blow to the case and entire case will have to be proved by other evidence. (I am assuming suit will not abate on death of the plaintiff. For this Please refer Order XXII CPC

 

Additional Comments:- From your it seems that the affidavit that you are referring is important to you since you are concerned about its evidentiary value and you want to use it. If this is correct then what you must do is file an Application in Court for urgent deposition of this witness citing his health. A court is empowered to record deposition of witness before his turn (De bene Esse) to prevent its loss. This way you can get the evidence of this witness recorded and cross be done by the opposite party. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh.

 

Disclaimer:- Opinion is only for guidance. 

2 Like

Samir N (2HelpU) (Business)     30 July 2021

Adv. Shubham Bhardwaj,

Excellent response. Very detailed, logical and extremely useful.

Thanks a lot.

1 Like

G.L.N. Prasad (Retired employee.)     30 July 2021

@ Adv. Shubham Bhardwaj,

Sir,

I will highly be obliged if you can also throw some light  on relevant query posted by me

Shubham Bhardwaj (Practice)     30 July 2021

Dear Mr Prasad, 

I have gone through your query in the present thread. I hope this is the query you were referring to. The answer to your query is as under: 

1. Whether the examination, cross-examination (by other defendants) of the deceased plaintiff is valid.is as it was is taken on record.

Comments:- The chief and cross of the plaintiff which has already been recorded by the court is absolutely valid. Although the unsuccessful defendant (who wanted to cross the plaintiff) may raise objection at appellate stage to assail the judgment against him on the ground of invalidity of deposition sans him, however the chances of it succeeding are slim in my opinion.  

2. The transposed legal heir of the plaintiff has to undergo examination in chief and has to be cross-examined once again.

Comments:- No, I do not see any reason to say that the chief and cross of legal heirs would be done again. The plaintiff in a civil suit is a de facto witness but ordinarily the legal heirs are not witness per se. They are simply representing the deceased plaintiff in representative character. This can also be seen from the fact that after the plaintiff has died, the title of the suit is amended to say "

"X through Legal representative Y

versus 

A, B, C        .........Defendants "

-------------------------------------------------------------------

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh

 

Disclaimer:- Opinion is only for guidance.

 

1 Like

G.L.N. Prasad (Retired employee.)     30 July 2021

@ Adv. Shubham Bhardwaj,

Sir

It is so kind of you for your prompt response.  Thanks a lot.

Regards

prasad

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