Sunday, 12 July 2015

Procedure to be followed by court when evidence is adduced which is beyond pleading



Delhi High Court in case of Amarjit Kaur (Supra) has held that an omission to object to evidence not admissible under the Evidence Act does  not make it admissible and it is the duty of the Judge to exclude inadmissible evidence whether or not objected to by a party. It is held that the duty of a Judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. The moment a witness commences giving evidence which is inadmissible he should be stopped by the court. I am in respectful agreement with the views expressed by the Delhi High Court in case of Amarjit Kaur (supra).
53. In my view, Mr Shah learned counsel appearing for the applicant has rightly pointed out that part of the deposition of Dr Navroze Kotwal is irrelevant to the issues and beyond the scope of pleadings as the said witness has sought to lead evidence on the matrimonial dispute between the applicant the said witness which allegations are neither relevant for the purpose of deciding any issues in testamentary matter, nor is in consonance with the pleadings filed by the defendants. It is not in dispute that defendants have already led evidence of three witnesses on various issues framed. The witness now proposed to be examined to prove that the Will was not executed by the said deceased is contrary to the affidavit filed by the deponent himself in which he has not only admitted execution of the Will but has reserved his right to act as executor in future. The deponent of the said affidavit has never applied for withdrawal of the the said affidavit filed in this Court.
54. In my view, the objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while  recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons.
Bombay High Court

Mrs Mahabanoo Navroz Kotwal vs Piloo Fali Bomanji on 10 June, 2014
Bench: R.D. Dhanuka
Citation;AIR 2015(NOC)766 Bom      
                  By   this   chamber   summons,   the   applicant   (original petitioner/plaintiff) seeks an order and direction that some of the portion of the affidavit in lieu of examination-in-chief filed by Dr Navroze S. Kotwal on 8th April 2014, proposed to be examined as a witness by the defendants be expunged from the affidavit or appropriate order be passed for ignoring those portion referred in the schedule appended to the chamber summons while recording his evidence as witness of the defendants. Some of the relevant facts for the purpose of deciding this chamber summons are as follows : -
2. On 10th June 1998, the applicant herein filed testamentary petition No.504 of 1998 interalia praying for probate of the alleged last Will and Testament of Nergish Keki Cassad @ Nergish Keki Casad. It is the case of the applicant that under the said alleged last Will & Testament dated 7 th February 1996 of the said Mrs Nergish Keki (herein after referred to as the said deceased), the applicant as well as Dr Navroze S. Kotwal were appointed as executors of the said Will. Under the said alleged Will & Testament, some of the properties are bequeathed by the said deceased in favour of the applicant. Along with the said testamentary petition, the applicant filed an affidavit of Dr Navroze S. Kotwal affirmed on 10 th June 1998. In the said affidavit, the said deponent stated that he was executor named in the last Will & Testament dated 7th February 1996 of the deceased. The applicant who is co-executrix has applied for the probate of the said last Will & Testament reserving his right of the said deponent to apply for the probate of the said Will. In the said affidavit, the said deponent reserved his right to Asmita 2/37 .. 3 .. CSTL-67/14 come in and apply for the Probate of the said last Will & Testament dated 7 th February 1996 of the deceased and further stated that he had no objection to the probate of the said Will being granted to the petitioner therein.
3. Upon filing caveats by the two caveators, the said petition was converted into a suit. In the affidavit in support of caveat, the caveators disputed that the said deceased at all executed any Will. The caveators also denied that the petitioner was executrix and Dr Navroze S. Kotwal was the executor of the said Will.
4. On 7th January 2002 this Court framed following issues.
(1) Whether the plaintiff proves that the deceased (Nergish Keki Cassad) executed a Will dated 7th February, 1997 ?
(2) Whether the plaintiff proves that the said deceased was of a sound and disposing mind at the time of making of the Will ?
(3) Whether the plaintiff proves that the said Will was executed by the deceased of her own free will ?
(4) Whether the plaintiff proves that the deceased was in a position to give instructions to the Attorney for preparing the Will ?
(5) Whether the defendant proves that there was any undue influence or coercion on the deceased into making the Will ?
(6) What order ?
5. It is not in dispute that the plaintiff/applicant and defendants examined three witnesses each. During the pendency of this petition/suit, Asmita 3/37 .. 4 .. CSTL-67/14 there was a dispute between the applicant and her husband Dr Navroze Kotwal. Matrimonial proceedings filed by the applicant and the said Dr Navroze Kotwal are pending in the family Court. In such proceedings, Dr Navroze Kotwal has filed an affidavit making certain allegations against the applicant.
6. On 12th February 2014, the defendants filed Judges Order (22/2014) in the suit inter alia praying for issuance of witness summons upon Dr Navroze Kotwal for recording evidence. It was the case of the defendants in affidavit in support of Judges Order that Dr Navroze Kotwal had been cited as one of the alleged executor in the alleged Will of which the plaintiff had applied for probate. In the matrimonial proceedings, Dr Kotwal had filed affidavit in reply to the counterclaim filed by the applicant. It is the case of the defendants that in the said affidavit, various statements of Dr Kotwal which are not only relevant facts but are also necessary for the purpose of deciding the controversy which arises in the present proceedings were made. According to defendants, those statements contained in the said affidavit of Dr Kotwal are relevant to prove the case of the defendants pleaded in affidavit filed in support of the caveat.
7. By an order dated 4th March 2014, this Court allowed the said Judges Order holding that case was made out for issuing summons to Dr Kotwal who was admittedly one of the executor of the Will. Pursuant to the said order, Dr Kotwal appeared before this Court and agreed to file affidavit in lieu of examination-in-chief.
8. On 8th April 2014, Dr Navroz Kotwal filed affidavit of evidence in Asmita 4/37 .. 5 .. CSTL-67/14 lieu of examination-in-chief. In the said affidavit of evidence. The witness reiterated the contents of his affidavit in reply to the counterclaim dated 30 th May 2013 and also placed reliance upon certain portions/extracts from the said affidavit in reply in the said affidavit of evidence. By an order dated 9 th April 2014, this Court recorded the submission made by the learned counsel appearing for the plaintiff that the entire affidavit of evidence of Dr Navroze Kotwal cannot be taken on record in evidence. This Court permitted the applicant to file appropriate application for raising such objection which can be considered by this Court. It was made clear that after deciding the objections proposed to be raised by the applicant in respect of part of the affidavit of evidence, parties can proceed with recording of evidence before the learned Commissioner.
9. On 17th April 2014, the applicant filed this chamber summons inter alia praying that some of the portion of the affidavit of evidence of Dr Navroze Kotwal be expunged from the affidavit or shall be ignored while recording his evidence. A schedule is appended to the chamber summons containing such objectionable portions of the affidavit which are sought to be expunged from the affidavit by the applicant. The defendants filed affidavit in reply and also placed reliance upon a statement/chart showing detail reasons in support of the plea that the depositions made in affidavit of evidence of Dr Navroze Kotwal are relevant and cannot be expunged at this stage.
10. Mr Shah learned counsel appearing for the applicant submits that Dr Navroze Kotwal was one the executors of the Will & Testament of the said deceased and had filed his affidavit in this proceedings on 10 th June 1998 Asmita 5/37 .. 6 .. CSTL-67/14 confirming the existence of the said last Will & Testament of the said deceased and had reserved his right to apply for probate of the said last Will & Testament. The deponent of the said affidavit is fully aware of the testamentary proceedings filed by the applicant and its progress but never exercised his liberty to apply for probate as an executor. Dr Navroze Kotwal also did not apply for withdrawal of his affidavit filed on 10 th June 1998.
11. It is submitted that plaintiff as well as defendants have already examined three witnesses each. Defendants want to examine Dr Navroze Kotwal as one more witness and to bring the allegations made by Navroze Kotwal against the applicant in their matrimonial proceedings on record in this testamentary proceedings which have nothing to do and/or not at all relevant for the purpose of deciding testamentary suit. Learned counsel submits that evidence of Dr Navroz Kotwal filed by way of affidavit cannot be beyond the pleadings of the defendants. The evidence has to be on the issues framed by this Court. It is submitted that no portions of the evidence which is highlighted in the schedule annexed to the affidavit in support of chamber summons are relevant for the purpose of deciding any issues nor such allegations are pleaded in the affidavit in support of caveat filed by the defendants. Personal dispute between the applicant and the witness arising out of divorce proceedings cannot be brought on record in this proceedings which are totally irrelevant. In support of this plea, the learned counsel placed reliance on paragraph 7 of the Judgment of Supreme Court in case of Ravinder Singh Vs. Janmeja Singh & Ors reported in (2000) 8 Supreme Court Cases 191. Learned counsel appearing for the defendants placed reliance on paragraphs 10 and 11 of the said judgment so as to distinguish Asmita 6/37 .. 7 .. CSTL-67/14 the said Judgement. Paragraphs 7, 10 and 11 of the Judgment in case of Ravinder Singh read thus :
" 7. The election petition is singularly silent of any such averment that the returned candidate, even if, it be assumed for the sake of the arguments, had published and distributed certain documents, (Annexures A-1 to A-7), as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as correct on the basis of legal advice, this requirement emanating from Section 123(4) has been mentioned but without any assertion that the returned candidate in this case published the false statements knowing them to be false and/or not believing them to be true, The submission of Mr. Talwar, that at the trial, the petitioner could have said so in his evidence is futile. It is an established proposition that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings.
10. Proviso to Section 83(1) of the Act lays down, in mandatory terms, that where an election petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit, in the prescribed form, in support of the allegations of such practice and the particulars thereof. The affidavit, which has been filed in support of the election petition, does not at all deal with the charge of bribery falling under Section 123(1) of the Act. Leaving aside the questions that the affidavit is not even in the prescribed form - Form 25, of the conduct of Election Rules, the allegations of corrupt practice made in the election petition are not supported by the otherwise defective affidavit either. All the names of the informants which have been given to the affidavit relate to the corrupt practice under Section 123(4) and the affidavit in this respect is a verbatum reproduction of the verification clause of the election petition concerning corrupt practice under Section 123(4). No name of any informant has been mentioned in respect of the allegations of corrupt practice under Section 123(1) in the affidavit. In the absence of the requisite affidavit filed in support of the allegation of corrupt practice under Section 123(1) of the Act, as detailed in the election petition, no issue could be raised for trial.
11. Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The Asmita 7/37 .. 8 .. CSTL-67/14 reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any finishing and roving enquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature."
12. Mr Shah learned counsel placed reliance on the Judgment of Privy Council in case of Siddik Mahomed Shah Vs. Mt. Saran & Ors. Reported in A.I.R. 1930 Privy Council 57 (1) in support of his submission that no amount of evidence can be looked into upon a plea which was never put forward. The relevant part of the said judgment reads thus :
Viscount Dunedin : This is a hopeless appeal. A certain the Khan is alleged by the appellant, who is in possession of certain lands which belonged to the Khan to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Court. After Hote Khan's death there was a transference of the lands in question by mutation of names effected upon the application of the Khan's widow. The Judicial Commissioners think it very probable that Hote Khan's widow being an ignorant person and with no one to help her, transferred the lands in that way in order that her spiritual adviser might hold them as trustee. The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of an, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward. The result is that their Lordships will humbly advise His Majesty that the appeal should be dismissed. As the respondents have not appeared, there will be no order as to costs."
13. Learned counsel also placed reliance on the Judgment of Delhi High Court in case of Amarjit Kaur & Ors Vs. Kishan Chand reported in 17(1980) Delhi Law Times 225 in support of his submission that if evidence is irrelevant, even consent of parties cannot make it relevant. It is submitted that it is the duty of the judge in all cases to exclude inadmissible evidence Asmita 8/37 .. 9 .. CSTL-67/14 whether or not objected to by a party and to disallow inadmissible evidence even when no objection is taken. Paragraph 18 of the said judgment reads thus :
(18) Mr. G.N. Aggarwal appearing for the landlord has referred me to several rulings in support of his contention that if a document is admitted into evidence and no objection is raised at that time then no objection can be raised at a subsequent stage. This is not the law. S. 298, Cr. P. Code (Act V of 1898) expressly laid down that it is the duty of judge to exclude inadmissible evidence "whether it is or is not objected to by the parties". The duty of a judge in civil cases has not been expressed in similar language but there is no manner of doubt that it is exactly the same. The combined effect of S. 5 (which says that evideence maybe given of relevant facts and of no others), S. 60, S. 64 and proviso I to S. 165 of Evidence Act is that an omission to object to evidence not admissible under that Act does not make it admissible and that it is the duty of the judge in all cases to exclude in- admissible evidence whether or not objected to by a party. The duty of a judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. (Stirland v. D.PP. . In R. v. Pitambar, , Markby J. said : "The moment a witness commences giving evidence which is inadmissible he should be stopped by the court."
14. Mr Shah also placed reliance on an unreported judgment of this Court delivered on 22nd June 2009 in case of Atmaram N. Sukhthankar & Ors. Vs. Philips L. Kallath & Ors. in Suit No.376 of 1979 in support of the submission that a party can be allowed to lead evidence only relevant to the matters already pleaded. It is submitted that since none of the portions of the affidavit which are highlighted in the affidavit in support of chamber summons are either relevant or pleaded in affidavit in support of caveat, such portion cannot be looked into for want of pleadings and shall be ignored.
Plaintiff is not required to cross examine the witness on such irrelevant evidence with a view to save time. Paragraphs 1,2 and 3 of the said judgment read thus :
1. Defendants' witness Defendant No.12 has filed affidavit in lieu of examination in chief. He is personally present in Court and has offered himself Asmita 9/37 .. 10 .. CSTL-67/14 for cross-examination. Counsel for the Plaintiff however, submits that some of the facts stated in the affidavit filed by Defendant No.12 in lieu of examination in chief are not pleaded in the Written Statement and cannot be allowed to be brought on record. My attention is invited to paragraphs-1,2,4,16, 18 and 23. In addition reference is also made to paragraph-3 where the witness has stated that the building known as "Saguna", was of Society, which fact is not pleaded in the Written statement. In addition, in paragraph-6 of the evidence, the witness has stated that the other trustees were also well aware of the appointment of Defendant No.1 as the Promoter and the Trustees themselves having subjected the said plot for construction to prospective flat purchasers, were also deemed Promoters, were also not pleaded. In response the Counsel for the Defendants submits that the facts pleaded in paragraphs 1,2, 3, 4 and 18 referred to earlier are subsequent events and the Defendants are free to depose about the same. It is not possible to accept this submission. It is well established position that the party can lead evidence in relation to the matters already pleaded. Assuming that the facts adverted to in above said paragraphs are subsequent events, unless the defendants' pleadings are amended, it is not possible for this Court to consider the matter now deposed for the first time in evidence. Realising this position, Counsel for the Defendants submits that in that case the Defendants be allowed to file application for amendment of pleadings.
2. Insofar as evidence at paragraphs-6, 16, 19, 20, 21 and 23 are concerned, the Counsel for the Defendants fairly accepts that the said facts are not pleaded in the Written Statement. He submits that since the Defendants intends to file application for amendment of pleadings, they may be permitted to apply for amendment of pleadings so as to allow the Defendants to incorporate even the facts stated in the paragraphs under consideration.
3. Counsel for the Plaintiffs opposed this request for adjournment. I have no difficulty in accepting the objection as the suit pertains to year 1979. There is nothing on record nor any explanation is offered as to what prevented the Defendants to take recourse to application for amendment, if so advised, until now. Written Statement has been filed as back as in January, 1983. Recording of cross examination of the Plaintiffs' witness is commenced before me in May, 2009 having noticed that the matter was not progressing before the Commissioner inspite of sufficient indulgence shown by the Court. In other words, the matter cannot be deferred any further. In the circumstances, I have no hesitation in taking the view that the facts stated in the above mentioned paragraphs which are marked in the affidavit in lieu of examination in chief will be of no avail to the Defendants and cannot be looked into for want of pleadings in that behalf. The Plaintiffs will be free to cross examine the Defendants' witness on the assumption that the statements of facts mentioned therein are not on record.
15. Mr Shah learned counsel also placed reliance on the Judgment of Asmita 10/37 .. 11 .. CSTL-67/14 Privy Council in case of Mst. Atkia Begam v. Muhammad Ibrahim Rashid Nawah reported in A.I. R. 1916 Privy Council 250. Relevant portion of the said judgment reads thus :
" The other instance is furnished by the evidence taken on commission at Mecca, of one of the witnesses of the plaintiff in the suit, named Mohamed Said Shatta. After being examined by the person appearing for the defendant, he was re-examined by the person appearing for the plaintiff, and was asked : " Did you hear from anybody that Atkia Begum was of age?" and he replied : "I heard from my wife, who heard from the mother of Atkia Begum.". As a Commissioner before whom evidence is taken does not rule points as to the admissibility of evidence, it may be impossible to prevent questions and answers such as these appearing on the face of depositions. That, however, is not the point. The point is that the deposition appears to have been read in evidence as it stood, without any objection having been made to this undoubted hearsay. The evil consequence of the admission of such evidence as this is not merely that it prolongs litigation, and increase its costs, but that it may unconsciously be regarded by judicial minds as corroboration of some piece of evidence legally admissible, and thereby obtain for the latter quite undue weight and significance."
16. Mr Shah learned counsel also placed reliance on the judgment of this Court (R.D.Dhanuka, J.) in case of Rajendra Singh Chhatrasal Singh Kushwaha (Deceased ) Vs. Jitendra Singh Rajendra Singh Kushwaha & Ors. reported in (2013)(6) Mh.L.J. 802 in support of his submission that the substantial part of evidence of Dr Navroze Kotwal is irrelevant to the issues framed by this Court and are thus required to be ignored. Paragraphs 13 to 17 of the said Judgment read thus :
13. On perusal of Order 18 Rule 2 of the Code of Civil Procedure, it is clear that the party is entitled to produce his evidence in support of all the issues which he is bound to prove. The court has to see whether evidence proposed to be led by the party is relevant in support of the issues involved. Only such evidence which is relevant in support of the issues, the party is bound to prove such issue. Any evidence which is not relevant to the issues involved, can be considered irrelevant.
There was an amendment to Order 18 Rule 4 of the Code of Civil Procedure, 1908 by which examination in chief of the witness is allowed to be filed on affidavit. The legislative intent to permit examination in chief of the witness by filing affidavit was to expediate the trial. The question that arises for consideration of this court is if there was no such amendment permitting the Asmita 11/37 .. 12 .. CSTL-67/14 party to file affidavit in lieu of examination in chief of the witnesses and if the oral examination of the party who seeks to lead oral evidence was required to be recorded in the court, whether court could have permitted the party in examination in chief to lead any evidence which was not relevant to the issue. In my view, the court could not have permitted or would have stopped the party from leading evidence in examination in chief to the issue which were not relevant for the purpose of deciding the suit. The court cannot permit the party to lead an irrelevant evidence or evidence not related to the issue even in affidavit filed by way of examination in chief in lieu of oral evidence. Order 18 rule 4 in my view has to be read with Order 18 rule 2 which clearly provides that evidence has to be in support of the issues which party is bound to prove. In my view, since the defendant is not bound to prove nor it is relevant in the testamentary proceedings that the deceased who was alleged to have bequeathed particular property was not owner of the said property such part of evidence is irrelevant and can not be permitted by Court. If the court could not have permitted the defendant to lead such evidence as not related to the issue involved under Order 18 rule 2, the court cannot permit the said party to lead evidence not related to the issue involved or the issue which the party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of examination in chief.
14. As far as maintainability of this Chamber summons is concerned, on perusal of Rule 121(5) and 121(38), in my view, since 121(5) applies to the pleadings and not to evidence, such rule will not apply to the application filed by the plaintiff for striking of the part of the evidence. As far as rule 121(38) is concerned, that gives discretionary power to the court to dispose of the matters which are not expressly required to be disposed of in the court by hearing the same in chambers. The said rule also does not apply to such application. In my view, section 151 of the Code of Civil Procedure, 1908, gives inherent powers to the court to strike of the irrelevant evidence at this stage with a view to avoid any further delay in the matter and to avoid any cross examination on irrelevant issues. In my view, part of the evidence which is on the face of it irrelevant and not relevant to the issue involved or issue which the court ultimately cannot decide, can be struck of and/or can be ignored even before commencement of cross examination.
15. As far as submission of Mr. Khandeparkar that the court has to decide the admissibility of evidence at the stage of final arguments and not at this stage under section of the Indian Evidence Act is concerned, in my view on plain reading of section of the Indian Evidence Act, it is clear that at the stage when the party proposes to give any evidence on any fact, the court is empowered to ask such party who is proposing to give evidence, in what manner the alleged fact if proved would be relevant and the court shall admit the evidence, if it deems that fact if proved would be relevant and not otherwise. The court is thus empowered to consider whether to admit the evidence which would be relevant and not otherwise. In my view, there is no substance in the submissions made by Mr. Khandeparkar learned counsel for the defendant.
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16. I am of the view that paragraphs 3 and 4 of the affidavit in lieu of examination in chief which refers to the address alleged to be correct address according to the defendant of the deceased is not relevant to the issue. What is deposed in paragraph 13 to 17 which dealt with the power of the testator to bequeath the property alleged to be ancestral property in which defendant has claimed rights are irrelevant to the issue. Since this court cannot decide these issues in the testamentary proceedings, no purpose would be served by allowing the witnesses to depose on these allegations which are not relevant to the issues involved and which the court cannot decide.
17. I, therefore, pass the following order:
(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief dated 18th March, 2013, being not relevant to the issue will not be read in evidence. Plaintiff is not required to cross examine the defendant in respect of such deposition made in paragraph 3, 4 and 13 to 17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate proceedings for adjudication of title before appropriate court.
(b) Both the parties are directed to proceed with evidence in respect of the remaining paragraphs of the said affidavit expeditiously.
(c) Application is disposed of in the aforesaid terms. There shall be no order as to costs.
17. Division Bench of this Court has rejected the appeal arising out of the said Judgment in case of Rajendra Singh Kushwaha (supra) delivered on 10th December 2013. Paragraphs 1 to 3 of the said order read thus :
1. The appeal challenges an order dated 29th October 2013 striking out certain portions ruling that the deposition made in paragraph Nos.3, 4 and 13 to 17 of the affidavit in lieu of the examination in chief of the appellant dated 18th March 2013 are not relevant to the issue and, therefore, will not be read in evidence. The learned Judge held that the plaintiff, therefore, will not be required to crossexamine the appellant in respect of the deposition contained in the said paragraphs.
2. We do not for a moment suggest that Mr. Jagtiani's contentions on merits are without substance. Indeed there is much to be said in respect thereof. We are however not inclined to admit this appeal only on the ground that the appellant is always at liberty to challenge these orders from the final order or decree, if necessary.
3. The contention that the Court is not entitled to adjudicate upon the objections Asmita 13/37 .. 14 .. CSTL-67/14 to the affidavit in lieu of examination in chief till the stage of the arguments is not wellfounded. The learned Trial Judge is always entitled to rule upon the admissibility of documents as well as oral evidence even at the stage of evidence before a Commissioner for recording evidence.
18. Mr Shah learned counsel invited my attention to various portions of the affidavit of evidence of Dr Navroz Kotwal in support of his submission that all such portions are sought to be placed on record so as to prejudice the mind of the Court and are noway relevant to the issues. It is submitted that in the affidavit of evidence the deponent has sought to incorporate the entire affidavit filed by him in matrimonial proceedings which cannot be permitted. My attention is also invited to various paragraphs of the affidavit in support of caveat filed by the caveator and also additional affidavit in support of caveat to demonstrate the nature of allegations made by the caveators and would submit that the depositions sought to be made in affidavit of evidence are beyond the allegations made in affidavit in support of caveats filed by the defendants.
19. Mr Khandeparkar, learned counsel appearing on behalf of the defendants on instructions submits that defendant has no objection if last two lines of paragraph 4 of affidavit by which deponent has reiterated the contents of affidavit in reply to counterclaim dated 30 th May 2013 is ignored for the purpose of cross-examination. Statement is accepted. It is submitted by the learned counsel that the plaintiff herself has referred to a joint Will and has pleaded that instructions were given to prepare the Will on the line of a joint Will. The applicant had serious dispute with her uncle. The deponent of the affidavit has deposed on the issue relating to her credibility.
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It is submitted that evidence is also led by the applicant herself making various allegations beyond the pleadings and unrelated to the issues framed.
Evidence in rebuttal could be led by the defendant by examining Dr Navroze Kotwal. It is submitted that whether any portion of the affidavit is relevant or not, such objection can be taken on record at this stage and can be considered at the time of final hearing of the suit and not at this stage. Learned counsel submits that the deponent of the affidavit would be available for cross-examination by the applicant and thus no part of the evidence can be expunged or ignored at this stage. Learned counsel placed reliance on the statements made in the chart annexed to affidavit in reply to demonstrate as to how each and every part of affidavit of evidence would be relevant and cannot be ignored at this stage.
20. Learned counsel submits that in the affidavit of evidence, the deponent has brought on record the relationship between the applicant and the deceased testator and her husband by way of counter evidence. Such material is introduced by the applicant herself in her evidence and thus defendant is entitled to produce counter evidence in the material introduced by the applicant. It is submitted that there can be evidence to bring on record in evidence counter to disprove the material brought on record by the plaintiff. The learned counsel placed reliance on the Judgment of Supreme Court in case of Anil Rishi v. Gurbaksh Singh (2006) 5 Supreme Court Cases 558. Paragraph 19 of the said judgment reads thus :
19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;
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(ii) to make that of establishing a proposition as against all counter evidence;
and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
21. Learned counsel placed reliance on Rule 206 of Bombay High Court (Original Side) Rules and would submit that Court has power to strike off portion of affidavit which is frivolous and relevancy can be considered only at the stage of final hearing. Provisions of Order 6 Rule 16 of the Code of Civil Procedure 1908 does not apply to affidavit of evidence filed under Order XVIII Rule 4. It is stated that in view of Rule 206, Section 151 of the Code of Civil Procedure would not apply. Court has power to consider the relevancy of evidence at the stage of hearing of a suit. Chamber summons itself can be kept in abeyance till disposal of suit and can be heard at the time of trial. Reliance is placed on paragraph 28 of the Judgment of Supreme Court in case of Vinod Seth Vs. Deveinder Bajaj & Anr. (2010) 8 SCC 1 which reads thus :
28. As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplated by any law.
22. Mr Khandeparkar learned counsel placed reliance on the judgment of this Court in case of Harakchand Gulabchand Dhoka v. Kashinath Asmita 16/37 .. 17 .. CSTL-67/14 Narsingh Marathe 2010 (6) Bom. C. R. 379 in support of his submission that even if any part of evidence is irrelevant or is beyond the pleadings filed by such party, rival party can record his objectiond in writing to the objectionable portion of the affidavit and the Court has power to discard such evidence while finally deciding the suit or proceeding. Party cannot insist upon the Court considering said objection before cross-examination of the witness starts. Paragraphs 5 to 9 of the said judgment read thus :
" 5. I have carefully considered the submissions. It will be necessary to consider the decision of the Apex Court in case of Amir Trading Corporation (supra). The Apex Court considered the scheme of the provisions of Rule 4 and Rule 5 of Order XVIII of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). The Apex Court noted that as per the rule 4 of Order XVIII of the said Code, examination-in-chief in every case shall be on affidavit. In paragraph 19 of the decision, the Apex Court observed that the evidence of every witness will be in the form of an affidavit and what remains is only cross examination or reexamination. Paragraph 32 of the said decision reads thus :
"32 The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such as objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever the examination-in chief is taken on an affidavit and in the event, he desires to cross examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court." (Emphasis added) Once the affidavit in lieu of examination-in-chief is filed it partakes the character of the examination-in-chief of the concerned witness. There is no provision under the said Code under which the Court can direct deletion of any portion of an examination-in-chief. Nevertheless, an objection can always be taken by the rival party in writing to any objectionable portion of the affidavit.
Moreover, the attention of the witness can be always invited to said portion while cross examining him. If there are irrelevant statements in the affidavit in lieu of examination-in-chief and if there are statements which are beyond the scope of the pleadings, the rival party can always record his objection in writing to the objectionable portion of the affidavit. The law is well settled. A party to the suit Asmita 17/37 .. 18 .. CSTL-67/14 cannot be permitted to travel beyond his pleadings. If any evidence is tried to be adduced which has no foundation in the pleadings, the Court always has a power to discard such evidence while finally deciding the suit or proceeding.
6. The submission of the learned counsel for the petitioner was that as the Apex Court has held that the aggrieved parties can file objections in writing to any portion of an affidavit in lieu of examination-in-chief, it is the duty of the Court to consider the objections on merits and to pass appropriate order dealing with the objections. The learned counsel for the petitioner is right when he says that the objection has to be considered. However, it is necessary to see at what stage it should be considered and in what manner the objection should be dealt with. Considering the scheme of the amended provisions of the said Code, objection raised in writing will have to be considered at the time of final hearing of the suit or proceeding. If on the basis of the objection , the Court finds that certain statements made in the affidavit are beyond the scope of the pleadings, the Court can always discard that part of the evidence while delivering the final Judgment. On the basis of such objection raised, the Court has no power to order deletion of the certain portions of the affidavit but the Court certainly has a power to discard a part of the evidence while deciding the suit.
7. The Apex Court further held that even if the objection in writing is not filed, while cross examining the witness, the attention of the witness can be drawn to the objectionable portion of the affidavit. This is the second mode suggested by the Apex Court of raising an objection to any part of the affidavit.
8. The very object of amending rule 4 of Order XVIII of the said Code is to ensure that there is a speedy trial. The object is to ensure that the time of the Court is not wasted in recording the lengthy examination-in-chief. Consistent with the said object, it is obvious that the objection raised to any part of the affidavit in lieu of examination-in-chief will have to be considered at the time of final hearing of the suit or proceeding. The party raising objection cannot insist upon the Court considering the said objection before cross examination of the witness starts. In a given case, rival party may not raise objection in writing. As stated earlier, the party can cross examine the witness by inviting attention of the witness to the statements which according to the rival party are objectionable. Even in such a case, at the time of final hearing, objection will have to be considered by the Court though there may not be any specific objection in writing. It is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence. If a portion of the affidavit is found to be not relevant or if it is found that the portion has no foundation in the pleadings, the Court can always discard it while deciding the suit.
9. Therefore, the learned trial Judge is right only to the extent that he was powerless to delete any portion of the affidavit. It must be noted that the trial Court has not considered the merits of the objections raised by the petitioner. The trial Court has rejected objections only on the ground that there is no power Asmita 18/37 .. 19 .. CSTL-67/14 vesting in the Court to delete any portion of the affidavit. As already held earlier, the trial Court is right to the extent that there is no power vesting in the Court to delete any portion of an affidavit in lieu of examination-in-chief."
23. Mr Khandeparkar placed reliance on the Judgment of Supreme Court in case of Bipin Shantilal Panchal v. State of Gujarat (AIR 2001 Supreme Court 1158) in support of his submission that objection of the applicant about alleged irrelevancy of the portion of evidence can be kept in abeyance till the matter is finally heard. Paragraph 12 to 14 of the said Judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) read thus :
" 12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this :
Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided "at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to Asmita 19/37 .. 20 .. CSTL-67/14 decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).
14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed an reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery of expenses."
24. Learned counsel also placed reliance on an unreported Judgment of this Court delivered on 5 th November 2012 in case of Vijay Baburao Katore & Ors. Vs. Bhausaheb Baburao Katore & Ors. in Writ Petition No.9033 of 2012 in support of the submission that the relevancy of the evidence, and the weightage given to such evidence can be considered by the Court at the time of final adjudication and at this stage, it is not appropriate for the Court to discard any part of the evidence. Paragraphs 5 to 7 of the said Judgment read thus :
5. With the assistance of learned counsel I have gone through the order. This Court in a case of Harakchand Dhoka Vs. Kashinath Narsingh Marathe referred supra has held thus :
Specific Relief Act, 1963, Secs. 10 & 12 - Code of Civil Procedure, 1908, O. 18 Rr.4 & 5 Court's power -Scope - Deletion of paras in affidavit in lieu of examination-in-chief - Application rejected by Court holding it had no power to grant permission for its deletion - Held, once an affidavit in lieu of examination-in- chief is filed, it partakes character of examination-in-chief. There is no provision in Code to enable Court to order its deletion. In case statement is irrelevant or beyond scope of pleadings an objection can always be taken in writing and Court can discard such portion while finally deciding suit. 2004(3) Bom. C. R.
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583(S.C.). Trial Court is therefore, right to extent that it cannot order deletion of objectionable paras. But on merits application of appellant be treated as an objection to be decided by Court at appropriate state."
6. What the relevancy of said evidence, what is the weightage given to the said evidence all these aspects can be considered by the Court at the time of final adjudication. At this stage, it was improper for the Court to discard the said evidence itself. If at the time of final trial the Court finds the said evidence to be irrelevant, not proved, then at that stage, the Court may say that, it does not reply on the said evidence. But at this stage, the Court could not have discarded the said evidence.
7. The plaintiff will have every opportunity to cross examine the said witness and thereafter the significance, relevancy of the said evidence would be considered by the Court at the time of adjudicating the suit.
25. Mr Khandeparkar also referred to the Judgment of Full Bench of this Court in case of Hemendra Rasiklal Ghia Vs. Subodh Mody (2008(6) Bom.CR 519 and Judgment of Division Bench of this Court in case of Ayushakti Ayurved Pvt. Ltd. Vs. Hindustan Uniliver Ltd. (2013 (1) Bom. C.R. 599). Both these Judgments will be dealt with by this Court in the later part of this Judgment.
26. Mr Khandeparkar submits that if this Court expunges any part of evidence at this stage and if the appeal Court finally comes to the conclusion that such part of the evidence could not have been expunged, defendants would not be able to lead any evidence at that stage under Order 41 Rule 27 of the Code of Civil Procedure. It is submitted that if Court comes to the conclusion finally that such portion of the evidence ought to have been omitted, that portion of the affidavit as well as cross-examination thereon can be ignored by the Court at the time of final hearing.
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27. In rejoinder, Mr Shah learned counsel appearing on behalf of the applicant placed strong reliance on the Judgment of this Court in case of Rajendra Singh Kushwaha (supra) and also placed reliance on Section 136 of the Indian Evidence Act which was considered by this Court in the said Judgment. In so far as Judgment of Supreme Court in case of Bipin Panchal (supra) is concerned, it is submitted that it is distinguishable on the ground that several Judgments taking a different view by the Supreme Court have been delivered subsequent to the said Judgment. It is submitted that the defendants have not been able to show as to how such objected portion of the affidavit of evidence is supported by pleadings of the defendants. Learned counsel submits that this Court has to exercise powers under Section 136 of the Indian Evidence Act at this stage when evidence is sought to be tendered by the witness and thus the evidence being irrelevant, such objection has to be decided by this Court at this stage and cannot be kept pending for adjudication at the time of hearing of a suit. It is submitted that in none of the Judgments relied upon by the learned counsel appearing for the defendants, this Court has considered the effect ofSection 136 of the Evidence Act. Mr Shah submits that substantial part of the evidence since being irrelevant and expungible, the applicant cannot be compelled to cross examine the witness on such irrelevant evidence. If the appeal Court comes to the conclusion that any portion of the evidence was wrongly being disallowed and or expunged by the trial Court, appeal Court has ample powers under Order 41 Rules 27 and 28 of the CPC to direct the trial Court to permit the parties to lead evidence on such issue or allow such evidence or documents to be produced or witness to be examined.
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28. I have perused the affidavit of evidence of Dr Navroze Kotwal. In paragraph 6 on page 2, a portion of the said paragraph which is objected by the plaintiff, the witness has deposed about the alleged gambling habit of the applicant and the alleged losses suffered therefrom. It is also alleged that the applicant had approached her maternal uncle for a loan of Rs.25,000/-
on the ground that she wanted to purchase a beautiful ring and when the uncle asked for return of money, the applicant called her uncle cheap and miserly for having asked for the money back from his niece. A perusal of affidavits in support of caveat as well as the issues framed by this Court makes it clear that there is neither any such allegation made in affidavits in support of caveat nor any such issue is framed. The deposition of the witness against his wife who is applicant in this case are of personal nature made in the matrimonial proceedings and have nothing to do with the issue involved in the matter. In my view, such part of the evidence is totally irrelevant to the issue herein and is beyond the pleadings filed by the caveators themselves and to that extent, this part of the evidence has to be ignored. I am not inclined to accept the submission of the learned counsel for the defendants that such alleged gambling habit of the applicant would disprove the loving relationship she claimed to have with her uncle Keki Cassad. The probate petition is not filed in respect of any alleged Will of her uncle Keki Cassad but in respect of the alleged Will & Testament of Mrs Nergish who was wife of the said Mr Keki Cassad.
29. In so far as portion of paragraph 6 on page 3 of the affidavit which is objected by the plaintiff is concerned, in the said paragraph, the deponent has deposed in respect of a separate Will of the uncle of the applicant which has nothing to do with the subject matter of this proceedings. The witness Asmita 23/37 .. 24 .. CSTL-67/14 himself has filed affidavit in this proceedings as far back as in the year 1998 admitting the Will & Testament of the said deceased and had reserved his right to act as the executor in future. In my view, the objection raised by the plaintiff in respect of such portion of paragraph 6 as irrelevant evidence has merits. Neither such allegation is made in the affidavits in support of caveat nor any such issue is framed by this Court. Such part of the evidence thus cannot be considered in evidence and has to be ignored for the purpose of cross-examination.
30. In so far as portion of paragraph 6 on page 3 of the affidavit which is objected by the plaintiff is concerned, it is deposed by the witness that the applicant used to play cards almost every afternoon and used to go to rehearsals in the evening and was obsessed with becoming a celebrity and having her name and photos in the newspaper. On the death of the uncle of the plaintiff, the applicant left for Pune to return after two days. In my view, this part of the evidence is also totally irrelevant for the purpose of deciding this petition. Neither such allegation is part of the pleadings nor any issue in that regard is framed by this Court nor can be framed by the Court.
31. In so far portion of paragraph 7 on page 4 of the affidavit is concerned, the deponent has deposed that he never borrowed any money from the uncle of the plaintiff and it was the plaintiff only who had borrowed money from him on various pretext. In my view, this part of the evidence is also totally irrelevant to the the issue in question. No such allegation is even made in the affidavits in support of the caveats. Whether the deponent used to borrow any money from the uncle or not is irrelevant.
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32. In so far as portion of paragraph 8 on page 4 of the affidavit which is objected by the plaintiff is concerned, it is deposed by the witness that the applicant was advised to leave her matrimonial home by her lawyer and to stay in Lotus Court because a case was filed against her in the Lotus Court matter is concerned, in my view this deposition is also totally irrelevant.
Whether the applicant left her matrimonial home because of the dispute filed against her in the Lotus Court matter or not is not at all relevant to decide this testamentary matter.
33. In so far as deposition in part of paragraph 9 on page 4 is concerned, it is alleged by the witness that he did not compel the applicant to leave the matrimonial home and to go and stay at Lotus Court or as to whey the mother of the applicant from Navsari Gujarat came and stayed at Lotus Court with her. It is also alleged that during her visits to Everest Chamber flat, she removed several antique statues, vases, plates etc. which are now kept at the Lotus Court flat and such items should be returned to the deponent. In my view, this part of the affidavit is also totally irrelevant. Whether the applicant removed any articles from some other premises and kept at the Lotus Court flat and whether deponent is entitled to get such items returned from the applicant or not, cannot be decided in this proceedings and is totally irrelevant.
34. In so far as deposition in paragraph 10 at page 5 which is objected by the plaintiff is concerned, it is deposed by the witness that applicant took up the residence in Lotus Court only to prevent it going out to the hands of the rightful heirs of the said deceased is concerned. This deposition is also in my view, is totally irrelevant. Why the applicant shifted to Lotus Court or the Asmita 25/37 .. 26 .. CSTL-67/14 same was with a view to prevent the said property go out to the hands of the rightful heirs of the said deceased cannot be decided in this proceedings nor the same is part of the pleadings.
35. In so far as deposition made in paragraph 12 at page 5 of the affidavit which is objected by the plaintiff is concerned, the witness has deposed that after demise of the said deceased, mother of the plaintiff had telephoned him to help the plaintiff and her mother to open a safe which was opened by the witness. In his presence, various jewellery were removed from the said locker in front of the witness. It is deposed that that the plaintiff had told the witness that she would give the jewellery to the children of uncle of the said deceased as the same were closest of kin to the said deceased. In my view, testamentary Court cannot go into the issue of title in respect of such jewellery and the said part of the deposition is totally irrelevant and is also beyond the pleadings.
36. In so far as part of the deposition made in paragraph 13 on page 5 of the affidavit is concerned, it is deposed by the witness that the applicant had gone and resided at the Lotus Court flat voluntarily and with a view to safeguard the said flat from the other heirs of the said deceased is concerned, in my view, this part of the evidence is also totally irrelevant as the same is beyond the scope of pleadings as well as the issues framed.
37. I am not inclined to accept the submission made by the learned counsel appearing for the defendants that the deposition regarding shifting of the plaintiff from her matrimonial home to the Lotus Court flat would reveal the conduct of the plaintiff and her well planned strategy to improve Asmita 26/37 .. 27 .. CSTL-67/14 her claim vide alleged Will of the deceased. I am also not inclined to accept the submission that deposition about the jewellery of the deceased or that the same is deliberately excluded from the schedule of the assets by the plaintiff is relevant for the purpose of deciding this testamentary suit.
38. Section 5 of the Indian Evidence Act 1982 provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant under the provisions of Indian Evidence Act 1972 and of no others.
39. Order 19 Rule 3 of the Code of Civil Procedure provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted. Under Order 19 Rule 1 of the Code of Civil Procedure, Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable.
40. Full Bench of this Court in case of Hemendra Rasiklal Ghia (supra) has decided the issue at which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised, considered and decided by the Court and at which stage, an objection to the admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII, Rule 4 of Civil Procedure Code should be considered and decided by the Court. It is held that if any objection is to be taken to any statement made in the affidavit, such an objection should always Asmita 27/37 .. 28 .. CSTL-67/14 be taken before the Court in writing and an attention of the witness should always be drawn while cross examining him. It is held that a determination or decision thereon can be deferred to a later stage of a suit, however final decision must be recorded before the Court proceeds to judgment. It is also held that irrelevant evidence brought on record can always be excluded as the question of admissibility of evidence is a question of law. It is held that if the evidence is irrelevant, consent of parties cannot make it relevant. Convenient mode to objection in the first instance, is reserving question of law as to its admissibility until final judgment in the case. The objection to the admissibility or relevancy of the evidence contained in the affidavit can be admitted at any stage reserving its resolution until final judgment.
41. In so far as judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) is concerned, the Full Bench of this Court in case of Hemendra Rasiklal Ghia (supra) has held that the view expressed in that case is based on the peculiar factual matrix arising out of criminal trial which was prolonged for almost 10 years in beach of fundamental rights of the accused underArticle-21 of the Constitution of India guarantying speedy and expeditious trial. The question referred for consideration of the Full Bench arose out of civil proceedings governed by the provisions of the Civil Procedure Code. The Full Bench followed the other judgments of Supreme Court in case of Smt. Dayamati Bai v. K. M. Shaffi (AIR 2004 SC 4082), P.C. Purshothama Reddiar V. S. Perumal (AIR 1972 SC 608) which dealt with the civil proceedings governed by the Code of Civil Procedure 1908. In my view, the Judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) relied upon by the learned counsel for the defendant which was Asmita 28/37 .. 29 .. CSTL-67/14 dealing with the criminal matter is clearly distinguishable and has been already interpreted by the Full Bench of this Court. In my view, the evidence whether in the form of affidavit or otherwise, only can be in relation to the fact or facts required to be proved by the parties to the suit which obviously has to be in consonance with the issues framed and not beyond the pleadings and issues framed. In my view, an objection to the admissibility of evidence has to be taken when such evidence is tendered and not afterwards. If any such objection is taken at the time when such evidence is tendered, such party can cure the defect and follow the correct mode of proof in accordance with law. If a party does not raise any objection about the admissibility of ex-facie irrelevant evidence at the threshold, such party allows the other party tendering the evidence or assume that the opposite party is not serious about the mode of proof and may plead never.
42. In my view, the affidavits permitted to be filed under Order 18 Rule 4 in lieu of examination-in-chief has to contain only the deposition which is relevant facts in issue in the suit or relevant aspects which the witness has to prove before the Court and not beyond what is pleaded by the parties and also not which is irrelevant to the issues framed. If an opposite party raises any objection about any part of the deposition which is totally irrelevant, beyond the pleadings and/or the same is irrelevant ex facie, Court can direct the deponent to file fresh affidavit after deleting the irrelevant part of evidence or can ignore such irrelevant part of evidence on which no cross- examination could be warranted.
43. Division Bench of this Court in case of Ayushakti Ayurved Pvt.
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Ltd. (supra) speaking through Shri Justice Dr D. Y. Chandrachud has held that before a trial Judge directs that evidence be recorded by a Commissioner, objections in regard to the admissibility of documents relied upon in the examination-in-chief should be decided by the trial Judge. The trial Judge does have an element of discretion in determining as to whether an objection to the admissibility of a particular document should be deferred to the final hearing, before the judgment is delivered in the suit. The Division Bench while taking such view has considered the fact that there is lengthy cross-examination before the Court Commissioner appointed by the Court for recording evidence causing lot of hardship to the litigants in terms of time and money. A Commissioner has no power to decide the objection as to admissibility and has to merely record the objection. It is held that judicial experience of proceedings before Commissioners appointed by the trial Judges of this Court on the Original Side shows only results in enlarging the scope of cross-examination before the Commissioner. Commissioners charge fees for every session of recording evidence or part thereof. It is held that the ambit of the cross-examination can be restricted by dealing with the question of admissibility of documents before recording of evidence before the Commissioner begins. Division Bench also considered the fact that if a decision on admissibility is deferred to final hearing of the suit and evidence is recorded without reference to a document of which admissibility is in dispute, segregation of that part of the evidence which relates to the document in question becomes a serious bone of contention at the final hearing of the suit. Cross examinations are rarely compartmentalized. Segregation of the evidence may not in every case be simple enough to resolve and would result in a considerable amount of uncertainty. If a party were not to cross-examine a witness with reference to a document in relation Asmita 30/37 .. 31 .. CSTL-67/14 to which an objection as to admissibility has been raised, it would run the risk of not having conducted the cross-examination at all with reference to the document, should it eventually be held to be admissible in evidence.
44. It is noticed by the Court in large number of matters that in view of the Court Commissioner having no power to decide any objection about the irrelevancy of the evidence, large number of irrelevant questions on inadmissible documents and irrelevant issues are asked to the witness. The Court Commissioner simplicitor records all the objections raised by the parties through advocate and keeps on recording the evidence whether it is relevant or irrelevant. This process of recording evidence in the absence of the Court deciding the issue of relevancy of the evidence in examination-in- chief and more particularly when deposition in examination-in-chief is ex- facie irrelevant, beyond the pleadings and beyond the powers of Court to adjudicate upon, cross-examination becomes very lengthy on the irrelevant issues causing tremendous loss of time and money to the litigants. It becomes very difficult for the Court also to segregate the irrelevant part of evidence or to segregate examination-in-chief and cross-examination on the irrelevant issues or which are beyond the pleadings or issues, the evidence being common. A party who does not choose to cross-examine the witness on the deposition made in the affidavit, always has an apprehension of being faced with an argument of waiver and/or evidence having remained un-
controverted.
45. In my view, if any part of the evidence is ex-facie irrelevant to the issue involved and is on the face of it beyond the pleadings of the parties, Asmita 31/37 .. 32 .. CSTL-67/14 though dealing with such objection takes little time of the Court at the threshold, dealing with such objection at the threshold can save lot of time and money, in stead of keeping all such evidence for consideration at the time of final hearing of the suit after allowing parties to lead evidence on irrelevant issues before the Court Commissioner. Similarly, a party having cross-examined the opponent may press for making of such inadmissible document or to consider the evidence if it suits him.
46. This Court (R. D. Dhanuka, J.) in case of Rajendra Kushwaha (supra) has held that under Order 18 Rule 2 of the Code of Civil Procedure, a party is entitled to produce his evidence in support of all the issues which he is bound to prove and Court has to see whether evidence proposed to be led by the party is relevant in support of the issues involved. Only such evidence which is relevant in support of the issues, the party is bound to prove such issue. Any evidence which is not relevant to the issues involved, can be considered irrelevant. It is held that if an irrelevant evidence could not have been permitted prior to the amendment to Order 18 Rule 4, such irrelevant evidence cannot be introduced in the affidavit in lieu of examination-in-chief of the witness. In the same Judgment, this Court also considered the effect of Section 136 of the Indian Evidence Act and it is held that at the stage when the party proposes to give any evidence on any fact, the Court is empowered to ask such party who is proposing to give evidence, in what manner the alleged fact if proved would be relevant and the Court shall admit the evidence, if it deems that fact if proved would be relevant and not otherwise. The Court is empowered to consider whether to admit the evidence which would be relevant and not otherwise.
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47. Division Bench in its order dated 10 th December 2013 in Appeal (L) No.474 of 2013 arising out of the Judgment of learned Single Judge in case of Rajendra Singh Kushwaha (supra), while dismissing the appeal has held that the learned trial Judge is always entitled to rule upon the admissibility of documents as well as oral evidence even at the stage of evidence before a Commissioner for recording evidence. Division Bench has rejected the contention of the appellant in that case that the Court is not entitled to adjudicate upon the objections to the affidavit in lieu of examination-in-chief till the stage of arguments.
48. Learned Single Judge of this Court in unreported Judgment delivered in case of Atmaram N. Sukhthankar (supra) has held that the party can lead evidence in relation to the matters already pleaded and even if a party wants to lead evidence in respect of subsequent events, unless such such pleadings are amended, it is not possible even for the Court to consider the matter for the first time in evidence. Considering these facts, this Court held that such portions of the affidavit in lieu of examination-in-chief would be of no avail to the defendants and cannot be looked into for want of pleadings in that behalf. This Court clarified that the plaintiffs would be free to cross examine the witness of the defendants on the assumption that statements of facts mentioned therein were not on record. I am in agreement with the view taken by the learned Single Judge of this Court which in my view, squarely applies to the facts of this Court. Privy Council in case of Mst. Atkia Begam (supra) has also taken the same view.
49. In so far as submission of Mr Khandeparkar, learned counsel Asmita 33/37 .. 34 .. CSTL-67/14 appearing for the defendants that in view of the material having been introduced by the applicant herself in evidence about the relationship between the applicant and the deceased testator, defendant is also entitled to produce counter evidence and in support of such submission, reliance on the Judgment of Supreme Court in case of Anil Rishi (supra) is concerned, a perusal of affidavit in lieu of examination-in-chief of the plaintiff does not indicate so. Be that as it may, even if any such evidence is brought on record by the plaintiff which was not objected to by the defendants when such evidence was tendered, evidentiary value of such evidence which if is found beyond the pleadings and/or irrelevant can be ignored by the Court at the time of final hearing of the matter. The Judgment of Supreme Court in case of Anil Rishi (supra) relied upon by the defendants is thus of no assistance to the defendants.
50. In so far Judgment of Supreme Court in Case of Vinod Seth (supra) relied upon by the learned counsel for the defendants is concerned, it held by the Supreme Court that powers under Section 151 of the Code of Civil Procedure cannot be invoked with reference to a matter which is covered by a specific provision in the Code. This Court in case of Rajendra Singh Kushwaha (supra) while dealing with Rule 121(5), 121(38) of the Bombay High Court (Original Side) Rules and Order 18 Rule 4 of the Code of Civil Procedure has held that Section 151 of the Code of Civil Procedure 1908 gives inherent powers to the court to strike of the irrelevant evidence at the stage of the party tendering affidavit in lieu of examination-in-chief with a view to avoid any further delay in the matter and to avoid any cross- examination on irrelevant issues. In my view, submission of learned counsel Asmita 34/37 .. 35 .. CSTL-67/14 has thus no merits and the issue raised by the learned counsel is already decided by this Court in case of Rajendra Singh Kushwaha (supra).
51. In so far as Judgment of this Court in case of Harakchand Gulabchand Dhoka (supra), this Court has held that there is no power vesting in the Court to order deletion of certain portions of the affidavit in lieu of examination-in-chief. In this Judgment, this Court has not proposed to delete any portion of the examination-in-chief. In view of this Court having held that some of the portions of the affidavit in lieu of examination-
in-chief is ex-facie irrelevant and is not in consonance with the pleadings filed by the defendants, this Court is of the view that such part of the affidavit can be ignored so as to save the time. Be that as it may, the Judgment of the learned Single Judge in case of Harakchand Dhoka (supra) and Judgment of this Court in case of Vijay Katore (supra) are inconsistent with the views of the Division Bench of this Court in case of Rajendra Singh Kushwaha (supra) and in case of Ayushakti Ayurved Pvt. Ltd. (supra) delivered on 22nd September 2009. I am respectfully bound by the Judgments of Division Bench which are even otherwise subsequent in point of time. In none of the judgments relied upon by the learned counsel appearing for the defendants, this Court has considered the effect of Section 136 of the Indian Evidence Act 1872 which is considered by this Court only in case of Rajendra Singh Kushwaha (supra) which Judgment is upheld by Division Bench of this Court.
52. Delhi High Court in case of Amarjit Kaur (Supra) has held that an omission to object to evidence not admissible under the Evidence Act does Asmita 35/37 .. 36 .. CSTL-67/14 not make it admissible and it is the duty of the Judge to exclude inadmissible evidence whether or not objected to by a party. It is held that the duty of a Judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. The moment a witness commences giving evidence which is inadmissible he should be stopped by the court. I am in respectful agreement with the views expressed by the Delhi High Court in case of Amarjit Kaur (supra).
53. In my view, Mr Shah learned counsel appearing for the applicant has rightly pointed out that part of the deposition of Dr Navroze Kotwal is irrelevant to the issues and beyond the scope of pleadings as the said witness has sought to lead evidence on the matrimonial dispute between the applicant the said witness which allegations are neither relevant for the purpose of deciding any issues in testamentary matter, nor is in consonance with the pleadings filed by the defendants. It is not in dispute that defendants have already led evidence of three witnesses on various issues framed. The witness now proposed to be examined to prove that the Will was not executed by the said deceased is contrary to the affidavit filed by the deponent himself in which he has not only admitted execution of the Will but has reserved his right to act as executor in future. The deponent of the said affidavit has never applied for withdrawal of the the said affidavit filed in this Court.
54. In my view, the objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while Asmita 36/37 .. 37 .. CSTL-67/14 recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons.
55. Chamber summons is disposed of in aforesaid terms. No order as to costs.
                                                                      ( R.D.DHANUKA, J.)


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