IN THE HIGH COURT OF ANDHRA PRADESH AT AMARA

FRIDAY .THE TWELFTH DAY OF MAY TWO THOUSAND AND TWENTY THREE

PRESENT

THE HONOURABLE MS JUSTICE B S BHANUMATHI'^

CIVIL REVISION PETITION NO: 1338 OF 2023

Petition under Article 227 of the Constitution of India aggrieved by the Court ' A- No. 43/2023 in HMOP 27/2010 on the file oHhe Court of the Senior Civil Judge. Rajam. Srikakulam district.

Between:

Aliena Siva Das. S/o Late Gopala Krishnarao Advocate. Hindu, aged 42 years. Sirlipothannavari Street Palakonda in Srikakulam District (Now Parvateepuram Manyam District) '

...Petitioner and

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• Rarnadevi. aged 40 years, W/o Aliena Sivadas. D/o L Hindu. Household duties. Resident of Venkatapuram Village Gavarampeta Post in Chinna Merangi SO in ^dS>5M526 ''i®'"®' (Now Parvateepuram Manyam
• 2. Mairapu Prasad,, S/o not known, aged 44 years. Employee Hindu Resident of Venkatapuram Village, Gavarampeta Post Chinna Merangi So'in Vizianagaram Distriot (Now Parvatipuiam Manyam

...Respondents

lA NO: 1 OF 2023

JiB'SF-psrss. H.....btS"io, Ci., ^Jrp" "•

Counsel for the Petitioner: SRI. ARRABOLU SAI NAVEEN

Counsel Tor the Respondent Nos. 1 & 2: None appeared

The Court made the following Order:

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THE HON'BLE MS JUSTICE B.S.BHANUMATHI

Civil Revision Petition No. 1338 of 2023 ORDER:

This revision petition is filed against the common order and HMOP decree dated * 01.04.2023 allowing I.A.No.43/2023 in No.27/2010 on the file of the Court of the Senior Civil Judge Rajam, filed under Order XVIII, Rule 17 r/w Section 151 C.P.C. by the respondent No.l in the divorce petition, seeking recall of herself to receive her additional chief affidavit for evidence in tiie main proceedings.

2. The parties are arraigned in the same manner as before the trial Court in the main proceedings.

3. Practice, 1980. Without noticing the same, the cross-examination was started and the objection was raised. accepted as Thereafter, the petition in I.A.No.42 of 2023 and in I.A.No.43 of 2023 were filed to recall the The petitioner filed HMOP.No.27 of 2010 seeking divorce. During the course of the enquiry, the respondent No.l filed the evidence in her chief-examination without describing the identity particulars of oath in form No. 14 r/w Rule 39 of the Civil Rules of respondent No.l and to receive the additional chief affidavit. Though the petition was opposed, the trial Court allowed both petitions by observing that the affidavit of the pt respondent without containing descriptive particulars viz., name, address etc., was

BSB, J C.R.P.No.1338 of 2023

a typographical and bonafide mistake and can be rectified. It is prejudice would be caused by allowing the petitions. evidence and it was only then in examination, the error was noticed. The trial Court observed that it is further held that no the beginning of the cross-

4. Having aggrieved by the common order passed in I.A.Nos.42 of Petition is filed alleging that the provision of Order XVIII Rule 17 CPC r/w Section 151 of CPC have not been followed by the trial Court and the petition cannot be allowed to fill the lacuna in the evidence already recorded. 2023 and 43 of 2023 in HMOP.No.27 of 2010, this Civil Revision

5. learned counsel for the petitioner that recalling of a witness under no cross-examination on the merits of the case has been conducted. The only cross-examination of the witness done is with regard to the lapse in the form of affidavit. Order XVIII, Rule-18 C.P.C cannot be permitted for filling up lacunas.' But, in the present case, under the peculiar circumstances, an incorrect form of affidavit in chief-examination without descriptive particulars of the deponent has been filed and taken in evidence and Learned counsel for the petitioner advanced the arguments on the same lines. There is no quarrel in the submission made by the

6. As per Order XVIII, Rule 4 C.P.C., in every case, the examination in chief of witness shall be an affidavit. But the foijm of

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affidavit is not provided in C.P.C. Rule Nos.34 to 52 of Chapter-IV of

Civil Rules of Practice, 1980 deal with affidavits.

"34./nterpretation ofwords,

35. Form,

36. Description ofdeponent,

37. Title ofaffidavits,

38. Before whom may be sworn,

39.Statement of Officer before whom affidavit is sworn,

40.1nterlineations, alteration, etc.,

41. Deponent to be identified,

42. Identification ofa pardanashin woman deponent,

43. Blind orilliterate deponent,

44. Filing,

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45. Notice offiling,

46. Affidavits not to be filed without proper endorsement,

47.Description ofthe person orplace,

48. Affidavit on information and belief,

49. Affidavitstating matter ofopinion,

50. Striking out scandalous matter,

51. Documents referred to in affidavit,

52. Cross examination on affidavit.

Among them, the Rules most relevant to the discussion are the following:

35.Form: - Every affidavit shall be drawn up in thefirst person and divided into paragraphs numbered consecutively, and each paragraph as nearly as may be, shall be confined to a district portion ofthe subject.

Every affidavit shall be written or typed or printed and stitched book wise. The deponent shall sign at the foot of each page ofthe affidavit.

36. Desorption of deponent:- Every person making an affidavit shall subscribe hisfull name, the name ofhisfather, his age, place ofresidence and his trade or occupation.

37. Title of affidavits:- Every affidavit shall be entitled as in the suit or matter in which it isfiled but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name ofthefirst plaintiffor defendant, respectively and that there are other plaintiffs or defendants as the case may be.

39. Statement of Officer before whom affidavit is sworn:- The officer before whom an affidavit is sworn or affirmed shall state the date on which, and the place where, the same is sworn or affirmed and sign his name and description at the endj as in Form No. 14; otherwise the same shaU not be filed or read in any matter without the leave of the Court.

to be identified:- Every person making an ^fidavit for use in the Court shall if not personally known to the person before whom the affidavit is made, be identified by s^eone known to him, and the person before whom the affidavit IS made shall state at the foot of the affidavits, the name, address, and description of the person by whom the identification was made.

FORM NO. 14 Rule 39- Affidavit ofSolemn Affirmation (Cause-title)

7 1. I, Madura Ramaswamy Pillai, son ofA.B. and a Hindu [. °f. years ofage land- owner residing at. do solemnly and sincerely affirm [or make oath and say] asfollows: 1 •

at the office of[the Court ofthe - /....... ^J {signed) ^z 2. Solemnly affirmed [orsworn]......i ' District Munsifof this day of (signed G.H.) Deputy Nazir ofthe said Court. Madura Ramaswamy Pillar Before me. Note: The word "ofthe caste" omitted by RO.C.No. 1464-60 PBI published in A.P.Gazette Rules Supplement to Part II dated 05-01-1961.

7. It is settled law that procedure is a handmaid ofjustice. In the present case, the affidavit was not in proper form, but was like a counter. It is a procedural lapse and the respondent No.l is not at fault. In the present case, the descriptive particulars of the deponent as required under Rule 36 R/w form No. 14 have not been provided. No substantive right of the petitioner in the lis is defeated, if affidavit in proper form is permitted to be filed subsequent to pointing out to the lapse. The above rules are procedural in nature.

a Civil CoT^rt has 8. Therefore, allowing the petitioner to file an affidavit in proper form and for that purpose recalling the witness, since the evidence is shown to be closed, is not an error. In any case.

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inherent power to pass orders appropriate to meet the ends ofJustice. no merit. examination was recorded, allowing the petitioner to file a fresh affidavit in the proper form cannot be termed as the filling up of the lacuna after cross-examination. As such this Court does not find any illegality in the order. Thereby, the present Civil Revision Petition has In this case, since in practical terms, no evidence in cross-

7. Accordingly, this Civil Revision Petition is dismissed. No costs.

Pending miscellaneous applications, if any shall stand closed.

//TRUE COPY//

RAO RAR Sd/- M PRABHAKAR ASSISTANT REGISl ^SEC^lfoti**^I OFFICER,**

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HIGH COURT DATED:12/05/2023

ORDER

CRP.No.1338 of 2023

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DISMISSING THE CRP