It may, in a given case, be that the evidence affidavit contains material that is relevant but is unsupported by pleadings. Cesar Rego Fernandes & Ors. v Angela Ninette Oliveira Fernandes & Ors. MANU/MH/1169/2007 : 2008 (1) BCR 270 tells us that this is not the kind of material that can be ordered to be struck off. But material that is clearly irrelevant, or hearsay, in the nature of legal submissions, arguments, in the form of prayers or reliefs, or denials of the kind we find in pleadings has no place in an evidence affidavit. It may be possible to illustrate this with an example from testamentary law. A probate petition, it is well settled, does not decide questions of title. Therefore, whether or not the testator had valid title to any given property mentioned in the will propounded is entirely irrelevant to that trial. This is the basis of the decision in Khushwaha, and testimony in that regard was therefore excluded. But in a given case, a witness may depose that it is to his (the witness's knowledge) that the testator was aware at the time of the making of the will that a certain property was not his. This may possibly be retained as being relevant to an issue of unsoundness of mind or undue influence. The distinction to be drawn, and drawn carefully, is whether the deponent says this as a matter of conjecture or personal knowledge. I would suggest that in a matter where there is the slightest doubt, then the material should be retained and not deleted or struck off. That power, while available to a court in its inherent jurisdiction, must be exercised cautiously and judiciously, and no cut-and-dried one-size-fits-all formulaic approach is possible.
22. The result of this discussion is that:
"(a) No Evidence Affidavit under Order XVIII Rule 4 of the CPC can be allowed to be 'withdrawn'. It is evidence as soon as it is affirmed.
(b) The Evidence Affidavit cannot contain matter that is irrelevant, inadmissible or both; or is in the nature of arguments, submissions or prayers. This is not 'evidence' as required by law. Were it to be attempted from the witness box, it would not be permitted; and hence it cannot be allowed to creep in merely because it happens to be placed on affidavit.
(c) It is permissible, and in fact often necessary, for a Court, with a view to expedition and to avoid a needlessly protracted cross-examination on irrelevancies and matter that is not 'evidence' to order that any such material that does not constitute evidence be struck off or be ordered or directed to be ignored without fear of adverse consequence.
IN THE HIGH COURT OF BOMBAY
Chamber Summons (L) No. 1678 of 2014 in Suit Nos. 1488 of 1980 and 1373 of 1992
Decided On: 15.06.2015
Banganga Cooperative Housing Society Ltd. Vs. Vasanti Gajanan Nerurkar and Ors.
Hon'ble Judges/Coram:
G.S. Patel, J.
Citation; AIR 2015(NOC)1132 Bom
