Thursday, 15 August 2019

What should be done if there is error in Affidavit of examination in chief?

 In the light of the above, I do not find that the impugned order
could be termed as being perverse or erroneous. The petitioner
cannot be permitted to withdraw his affidavit filed before the
Court. However, considering the law laid down, the plaintiff
would have the option of explaining the error in the affidavit by
stepping into the witness box to lead further oral examinationinchief
or file an additional affidavit as a part of the examinationinchief
and clarify the mistake if any.”
THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6779 OF 2009
WITH
WRIT PETITION NO.1892 OF 2017

Abdul Samad Nazmoddin  Vs Abdul Wahed  Shaikh Ameer,

Coram: Ravindra V.Ghuge, J.


1. I have heard the learned Advocates for the respective sides in
both these matters, which are inter connected involving the same
litigating sides and in relation to the same RCS No.65/2009.
2. The plaintiff had approached this Court in the first petition in
2009 upon being refused temporary injunction by the Trial Court as
well as by the Appellate Court. After approaching this Court, he was
granted temporary injunction by order dated 09/10/2009 and the
petition was admitted. Since the suit is of 2009, the temporary
injunction granted by this Court can be continued until the suit is
decided. The first petition is, therefore, disposed off by continuing
the temporary injunction in terms of the order dated 09/10/2009.
Rule is therefore discharged.
3. In the second petition, the plaintiff is before this Court upon
being aggrieved by the order dated 05/01/2016, by which the Trial
Court has rejected application Exh.81 filed by the plaintiff seeking
rejection of the second affidavit filed by defendant No.1 by way of
examination in chief. Submission is that defendant No.1 has first

preferred
an affidavit in lieu of examination in chief. Before
commencing the cross examination, he has filed one more affidavit in
which it is stated that some of the portions set out in the first
affidavit shall stand deleted. Exh.81 was filed by the plaintiff praying
for an order that a witness cannot be permitted to withdraw an
affidavit in lieu of evidence.
4. The Learned Advocate for the sole respondent submits that the
cross examination is yet to commence. Either his second affidavit
may also be considered or he may be granted liberty to step into the
witness box for further recording of his examination in chief.
5. This aspect is no longer resintegra
in view of the Law laid
down by this Court (Coram : G.S.Patel, J.) in the matter of Banganga Cooperative Housing Society Vs. Vasanti Gajanan Nerurkar and
others [2016(7) ALL MR 415 = 2015(5) Bom.C.R.813] and the
judgment delivered by this Court in the matter of Digambar
Ramchandra Bawaskar Vs. Soma Prabhu Pawar and others [2018(3)
ALL MR 618] (Coram : Myself).
6. Considering that this aspect has been settled by this Court, it
would be apposite to reproduce the conclusions drawn in paragraph
Nos.
13 to 15 in the Digambar case (supra) as under :“
13. This Court in the matter of Arun Bhika Mahale Vs. Ishwarlal
Onkar Marathe Writ
Petition No.6288 of 2013 has concluded by order
dated 19.9.2013, that in some circumstances, where the party realizes
some error in the affidavit in lieu of examinationinchief,
he is entitled
to lead further examinationinchief
or can also file an affidavit. But
the Court cannot order deletion of any portion of the said affidavit.
14. This Court in the case of Banganga (supra), has concluded in
paragraph Nos.7 to 11 as under:"
7. The submission by Mr. Jagtiani and Mr. Kanade is well
founded, and it has one immediate consequence for our
present purposes: once an Evidence Affidavit is thus filed,
and since there is no absolute requirement of it being
required to be reaffirmed by the deponent from the witness
box before that affidavit forms part of the evidentiary record,
it follows that it is examinationinchief
as soon as it
WP/1539/2016 is affirmed (or, at any rate, affirmed and
filed) and it is not thereafter possible to "withdraw" an
Evidence Affidavit. Once an Evidence Affidavit is filed, the
examinationinchief
of the deponent has, to all intents and
purposes, begun. It may be permissible for the deponent to
file a further affidavit, since Order XVIII Rule 4 does not limit
itself to a single affidavit, and although there is some
authority for the proposition that a witness may not
continuously file fresh affidavits to keep improving his case,
the view of our court is somewhat different, viz., that there is

no
impediment to the taking of additional ExaminationinChief
or the filing of a further or additional or supplemental
Affidavit in lieu of ExaminationinChief.
This was the view
taken by a learned single Judge of this Court (Khanwilkar,
J., as he then was) in Rajesh Varma v Aminex Holdings &
Investments & Ors. : 2008 (3) Mh.L.J. 460, paragraph 12 Not
only am I in most respectful agreement with that decision,
but it binds me; and it is also the view that I took in a recent
order.
8. What is not in doubt is that there can never be a
withdrawal of an Evidence Affidavit just as there can never
be a withdrawal of an examinationinchief
conducted
directly in Court. This position, following Rasiklal
Manikchand, raises some subsidiary questions: (1) what are
the consequences of a deponent filing an Evidence Affidavit
but not making himself available to a crossexamination?
(2)
Is it permissible for a Court to order the expunging or
redaction of any part of an Evidence Affidavit?
9. The first of these questions arises more frequently
WP/1539/2016 than one might suppose on a bare reading
of the statute. Implicit in the CPC and its provisions
regarding evidence is the assumption that a trial progresses
without long gaps in time and with reasonable dispatch. Our
experience is different. The reasons are many, but perhaps
the most obvious is the crowding of court dockets. This
makes it impractical to take every single case in the timely
fashion that it deserves. The result is that there is often a

considerable
time lag, sometimes of several years, between
the filing of an Evidence Affidavit and the commencement of
crossexamination.
Time is unkind to us all; to litigants
perhaps more than anyone else. By the time the trial begins,
the deponent may not be in a position any longer to
withstand the stress of a crossexamination.
This is the
situation in which Mr. Doctor's client, for instance, finds
himself. At the time when he filed his Evidence Affidavit,
some years ago, he was prepared to undergo a crossexamination.
For whatever reason, that did not happen. His
age and failing health no longer permit him to withstand a
crossexamination.
10. There are other situations too. A party may want to lead
the evidence of a witness. That witness does file an
Evidence Affidavit. But by the time the opportunity for a
crossexamination
finally comes around, that witness may
longer be willing to give evidence. This is particularly
noticeable in the case of companies and bodies corporate,
independent juristic entities all, but who can only ever give
evidence through individuals speaking on their behalf.
Again, years after an Evidence Affidavit is filed, the witness
WP/1539/2016 is simply unavailable to that body
corporate. This is of some significance in commercial
disputes. It often happens that large corporations file an
Evidence Affidavit of a serving officer. This is true of large
government sector companies, insurance companies, as also
private companies of varying sizes. Sometimes the deponent

and
the company part ways on less than amicable terms
and the deponent is then longer available to be offered for
crossexamination.
Should the corporate then be required to
summon the deponent, i.e., to compel his attendance,
particularly where the corporate is conceivably placed at a
very considerable disadvantage? For having parted ways
unhappily, the deponent might well disavow his Evidence
Affidavit earlier filed and give evidence against the body
corporate. Or should the body corporate be permitted to
'substitute' the evidence of that witness with the evidence of
another? After all, these are not situations of the parties'
making, be they individuals or bodies corporate; they are the
result of the delays endemic to our judicial system. Our
practices seem to be out of step with our rules of procedure
and, consequently, with the provisions of substantive law
such as the Evidence Act.
11. Broadly, there are two situations we must consider.
First, where the witness is no longer physically available,
i.e., he has expired between the time of filing of his Evidence
Affidavit and the time for crossexamination.
The law in this
regard is, I believe, wellsettled,
and it is simply this: that
where the testimony is incomplete by reason of death or
incapacity of the witness before crossexamination,
the
evidence, admissible when given, does not cease to be so
WP/1539/2016 merely on account of that intervening
factual circumstance. What probative or evidentiary value is
to be attached to this evidence is another matter, and turns

on
the circumstances of each case. A court may seek
independent corroboration of that evidence. It may accept it,
albeit cautiously, and that is no infirmity per se in the final
decision. This was the view of Mr. Justice H.R. Khanna as a
learned single Judge of the Delhi High Court in Krishan
Dayal v Chandu Ram : (1969) ILR 1090 and I am in most
respectful agreement with that view."
(Emphasis supplied)
15. In the light of the above, I do not find that the impugned order
could be termed as being perverse or erroneous. The petitioner
cannot be permitted to withdraw his affidavit filed before the
Court. However, considering the law laid down, the plaintiff
would have the option of explaining the error in the affidavit by
stepping into the witness box to lead further oral examinationinchief
or file an additional affidavit as a part of the examinationinchief
and clarify the mistake if any.”
7. In view of the above, the second petition No.1892/2017 is
partly allowed. The impugned order dated 05/01/2016 is quashed
and set aside and Exh.81 stands disposed off. Needless to state, the
sole defendant would be at liberty to step into the witness box and
continue the recording of his examination in chief. His affidavit
earlier tendered to the Court, which is now a part of the record, shall
be read alongwith his further oral examination in chief and the

plaintiff
would be at liberty to cross examine the defendant on the
affidavit as well as the oral examination in chief recorded before the
Court. The second affidavit filed by the defendant shall be discarded.
( Ravindra V.Ghuge, J.)

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