Delhi HC: Relevancy and admissibility of portion of affidavit evidence need not be adjudicated at an interim stage, they can be decided at the time of final hearing

For a period of three years, the trial in the present suit could not commence as the present adjudication remained on the Board of the Court. The delay in adjudication of the present application may not be attributable to either of the parties and some of the delay could be attributed to the functioning of the Court being affected on account of the COVID outbreak. However, the fact remains that the said application was listed on several dates before the Court and has remained on the Board for almost three years, as a result of which the trial could not progress. If the Court were to venture into deciding all the objections taken in the application and analyse all the averments made in the affidavit, it would result in holding a mini trial in the suit. This would unnecessarily delay the adjudication of the suit. {Para 12}

13. There is nothing in the application or the submissions made on behalf of the defendant to suggest that any prejudice would be caused to the defendant if the entire affidavit as filed by the plaintiff's witness remains on the record of the case. As noted above, counsel for the defendant would have the liberty to get his objections noted and cross-examinee the witness accordingly and the said objections would be decided at the time of final adjudication of the case.

In the High Court of Delhi at New Delhi

(Before Amit Bansal, J.)

Levitate Mobile Technologies Pvt. Ltd. Vs Standard Chartered Bank and Another 

CS(COMM) 169/2018

Decided on September 1, 2022

Citation: 2022 SCC OnLine Del 2707.

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Whether court can rely on evidence of witness who has not entered in witness box?

I have heard the learned counsel for the parties at length and I have also perused the exhibited documents. Since it has been urged on behalf of respondent no. 2 that the petitioner despite filing an affidavit in lieu of evidence had not entered the witness box and thus said affidavit could not be taken into consideration, that aspect of the matter would have to be first considered. As per provisions of Section 87(1) of the Act of 1951, an Election Petition has to be tried in accordance with the procedure applicable under the Code to the trial of suit. As per provisions of Order XVIII Rule 4(1) of the Code, examination-in-chief of a witness has to be on affidavit. As per Order XVIII Rule 4(2) of the Code, the cross-examination and re-examination of a witness whose evidence (examination-in-chief) by affidavit has been furnished to the Court has to be taken either by the Court or by the Commissioner appointed by it. Under Order XVIII Rule 5 of the Code, the manner in which evidence has to be taken in appealable cases has been prescribed.

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. Moreover, the respondent no. 2 has also not stepped into the witness box after tendering his affidavit in lieu of evidence. He was also not sought to be cross-examined by the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Election Petition No. 6/2014

Decided On: 31.10.2018

Sevakbhau Nirdhangi Waghaye Patil Vs.  The Returning Officer, Sakoli and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(3) MHLJ 510

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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.

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Whether witness is required to enter into witness box to prove affidavit of his examination in chief?

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Election Petition No. 6/2014

Decided On: 31.10.2018

Sevakbhau Nirdhangi Waghaye Patil  Vs. The Returning Officer, Sakoli and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: AIR 2019 Bom 56

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Whether court can discard part of affidavit of examination in chief?

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.

Bombay High Court

Harakchand Gulabchand Dhoka vs Kashinath Narsingh Marathe on 15 January, 2010

Bench: A.S. Oka

     1       Considering
                            the        nature       of    the      controversy
     involved,        the     Petition          is     taken        up      for    

   final
                      

hearing. I have heard the learned counsel for the parties. By this Writ Petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the order order dated 7th November 2009 passed by the trial Court.

2 The petitioner is the original plaintiff. The petitioner has filed a suit for specific performance of agreement of sale of the suit property. The suit is being contested by the respondent-defendant.

After the petitioner adduced evidence, the respondent filed his affidavit in lieu of examination-in-chief. After the affidavit was filed, the petitioner filed an application at Exh.76 raising an objection to certain portions of the affidavit in lieu of examination-in-chief of the respondent on the ground that certain statements therein are required to be deleted. In the said application, the petitioner has set out the alleged objectionable statements in different paragraphs of the affidavit in lieu of examination-in-chief. It was contended that the respondent had made an application for seeking permission to amend the written statement which was rejected by the trial Court and the additional paragraphs which were sought to be introduced by the proposed amendment have been re-produced in the affidavit in lieu of examination-in-chief. The prayer in the said application at Exh.76 was that the objectionable paragraphs in the affidavit in lieu of examination-

     while       rejecting
                         
     in-chief be struck out.
                                    the
                                                     The learned trial Judge
                                           application             relied         upon        the
     decision       of      this      Court         in     case       of      Cesar         Rego
                        
     Fernandes and others                   Vs.Angela Ninette Aliverira
     Fernandes and others [2008 (2) Mh.L.J

 159).                                             The

trial Court held that there was no power vesting in the Court to order deletion of certain portions of the affidavit in lieu of examination-in-chief.

3 The learned counsel for the petitioner-plaintiff has invited my attention to the text of the proposed amendment of written statement sought by the respondent by filing an application at Exh.51 and the order passed on the said application. He pointed out that the order rejecting the said application for amendment of the written statement has been affirmed by this Court. He pointed out that the additional averments which were sought to be added by the amendment find place in the affidavit in lieu of examination-in-chief. He submitted that the decision of this Court in the case of Cesar Rego Fernandes and others (supra) does not deal with the such contingency where the paragraphs which were not permitted to be added to the pleadings have been incorporated in the affidavit in lieu of examination-in-chief. He submitted that it will be unjust to compel the petitioner to cross examine the respondent on the said part of the affidavit in lieu of examination-in-chief. He placed reliance on the decision of the Apex Court in case of Ameer Trading Corporation Ltd. Vs.Shapoorji Data Processing Ltd. (AIR 2004 SC 355). He submitted that the Apex Court has held that there are two options available in such contingency. ig One option is to raise objection to the objectionable statements incorporated in the affidavit and the other option is to cross examine the deponent on the said statements. He submitted that the Apex Court has held that objection in writing can be filed and therefore, the said objection will have to be considered by the trial Court and proper order will have to be passed thereon. He submitted that in effect the application made by the petitioner at Exh.76 was for raising objection and therefore, the trial court was duty bound to deal with the said objection. He, therefore, submitted that the order rejecting the application is contrary to the law laid down by the Apex Court.

4 The learned counsel for the respondent submitted that there is no power vesting in the Court to delete any portion of the affidavit in lieu of examination-in-chief. He submitted that the order rejecting the application for amendment is not affirmed by this Court on merits but this Court has declined to exercise writ jurisdiction on the ground that the said order is an interlocutory order.

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 re- examination. 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 examining him.

can be always invited to said portion while cross 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 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 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.

10 In the circumstances, though the operative part of the impugned order deserves to be confirmed, a direction will have to be issued that the application made by the petitioner at Exh-76 shall be treated as an objection in writing raised by the petitioner and the said objection will have to be considered by the trial Court as held in the earlier part of this Judgment. The contention of the petitioner is that affidavit of the respondent contains certain statements which were sought to be incorporated in the written amendment and the Court has expressly declined to statement by way of grant permission to amend the written statement.

This Court has not examined this aspect on merits. This aspect will have to be considered by the trial Court at the appropriate stage.

11 Hence, I pass the following order :

i) The impugned Judgment and order in so far as it rejects the prayer for striking out certain paragraphs of the affidavit in lieu of examination-in-chief stands confirmed.

ii)However, application at Exh.76 made by the petitioner shall be treated as objection in writing raised by the petitioner. The said objection shall be considered at the time of final hearing of the suit. All contentions of the parties on the merits of the said objections are kept open.

iii)The Writ Petition is disposed of in above terms.

JUDGE

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Whether part of affidavit of examination in chief which is not in consonance with pleading can be ignored by court?

 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 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.

IN THE HIGH COURT OF BOMBAY

Chamber Summons (L) No. 67 of 2014 in Testamentary Suit No. 26 of 1999 in Testamentary Petition No. 504 of 1998

Decided On: 10.06.2014

 Mahabanoo Navroz Kotwal Vs.  Piloo Fali Bomanji

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

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Landmark Judgment on drafting of affidavit of examination in Chief

 It is therefore the duty of a court to exclude hearsay evidence even if no objection is taken. The "evil consequence of admission of hearsay evidence is not merely that it prolongs litigation and increases its cost, 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." Atkia Begum v. Mohammed, AIR 1916 PC 250 Now it cannot be that merely because CPC Order 18 seeks to hasten trials therefore it, sub-silentio, permits the inclusion of inadmissible evidence, or that having the 'testimony' on 'affidavit' is a license to introduce into the record material that is inadmissible in law.

20. Consequently matters that are (i) argumentative or in the nature of submissions and pleadings etc.; (ii) matters that are wholly irrelevant and also not to the personal knowledge of the deponent or witness; and (iii) matters that are demonstrably hearsay, must all be excluded. They cannot form part of the examination-in-chief on affidavit required by CPC Order 18, Rule 4. Where an evidence affidavit purports to contain such material, a court must endeavour to bring that affidavit into conformity with the provisions of the Order 18 and Order 19 of the CPC and of the Evidence Act. A non-conforming evidence affidavit is anathema to our system of law.

21. There is another reason for this approach. The Evidence Act restricts what evidence may be led as examination in chief. The provisions of CPC Order 18 Rule 4 are procedural. The Evidence Act is substantive law. Procedural law cannot expand the ambit and scope of or override substantive law. That could also never have been the legislative mandate of the 2002 amendments to Order 18 Rule 4 of the Code of Civil Procedure, 1908.

22. In the present case, a very large portion of the present affidavit is precisely of this impermissible nature. It is argumentative. It contain submissions. It contains traverses in the nature of pleadings of statements made in the written statement. None of this can be permitted to find place in an affidavit in lieu of examination in chief. Mr. Nevatia will have the widest latitude in arguments. There, pointing to the pleadings and evidence, both documentary and oral, he may invite the Court to draw such conclusions or arrive at such findings as are in his submission appropriate. But that does not mean that his evidence affidavit can be more than the law permits.

23. How should a court approach such a non-conforming affidavit, i.e., one that contains material that is clearly inadmissible or demonstrably irrelevant? A party may, in a given case, be permitted to replace his affidavit with one that conforms. It is not in every case that a party is required to attest to the correctness of the contents of that affidavit, as the Supreme Court has held. Rasiklal Manikchand Dhariwal v. Mss Food Products, MANU/SC/1408/2011 : (2012) 2 SCC 196 But where an affidavit contains material that, even had the witness attested to it, could not have formed part of his 'testimony' properly so-called, it would plainly defeat the interest of expedition to prevent a party from substituting that affidavit with one that meets the rigour of CPC Order 18 Rule 4. Of course, this does not mean that a party should be continually permitted to 'test the waters' by filing one non-conforming affidavit after the other. Replacing such an affidavit must, surely, be in a court's discretion. On the footing that a court's power to 'delete' any portion of an evidence affidavit (even portions that are inadmissible) is completely taken away, a court may still rule on portions of the affidavit to which objections are taken and direct that those portions be excluded from consideration as testimony; i.e., that a cross-examiner will be at liberty to ignore those portions without fear of an adverse inference being drawn.

24. I believe an approach such as this is not just permissible, it is necessary. In matter after matter, I find that so-called 'evidence affidavits' are nothing but verbatim reproductions of pleadings, replete with submissions and arguments (which should have no place in pleadings either), and very often even entire prayers. Now if this matter is not kept out of the scope of a cross-examination, the consequences are unimaginable. A cross-examination would sprawl over several hundred pages and several thousand questions. This does happen, and it happens repeatedly. 

IN THE HIGH COURT OF BOMBAY

Suit No. 3598 of 1996

Decided On: 07.04.2014

 Harish Loyalka   Vs. Dileep Nevatia and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2014(4) ABR 545

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Whether a party can be permitted to withdraw affidavit of his examination in chief?

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 examination-in-chief or file an additional affidavit as a part of the examination-in-chief and clarify the mistake if any.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1539 of 2016

Decided On: 19.07.2017

 Digambar Ramchandra Bawaskar Vs.  Soma Prabhu Pawar and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2018(1) MHLJ 169

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Whether court will be barred from allowing amendment of plaint prior to filing of examination in chief?

In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in "Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others"2010 (5) Mah. L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (MANU/MH/1594/2009 : 2010 (1) Bom. C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/ es. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9659 of 2010

Decided On: 04.09.2012

 Mahadeo

Vs.

Balaji

Coram:

N.H. Patil and U.D. Salvi, JJ.

Citation: 2012(7) ALLMR564

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Leading case law in respect of affidavit in lieu of examination in chief

 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.

(d) Where an Evidence Affidavit is filed and the witness or deponent, though otherwise available, is not made available for cross-examination, the well-established consequences in law will follow. Specifically, the opposite party will be entitled to submit that an adverse inference be drawn against such a witness or the party who fails to produce that witness for cross- examination; and, further, that should that evidence contain any admissions, these may be used by the other party; but so much of the evidence as is against the party entitled to cross-examination but which has gone untested for want of production of the witness will be liable to be ignored.

Bombay High Court

Banganga Co-Op.Hsg.Soc.Ltd vs Mrs.Vasanti Gajanan Nerurkar on 15 June, 2015

Bench: G.S. Patel

Chamber Summons (L) No. 1678 of 2014 in Suit Nos. 1488 of 1980 and 1373 of 1992


Citation; AIR 2015(NOC)1132 Bom

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Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding?

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1020 of 2008

Decided On: 01.04.2008

Appellants: Dilip S/o Madanlal Jain
Vs.
Respondent: Smt. Pritam Kaur Wd/o Late Dr. M.S. Madan

Hon'ble Judges/Coram:
A.H. Joshi, J.

Civil - Affidavit - Petitioner challenged eviction order passed against him by Trial Court as well as Appellate - Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding? - If contents of affidavit were duly proved and it has been allowed to go on record unobjected then deficiency of confirmation of affidavit would be deficiency of form than of content - Held,order of Trial Court as well as Appellate Court accordingly upheld - Petition dismissed

Citation: 2008(4)ALLMR575, 2008(5)MhLj48

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How to decide objection that examination in chief of witness is beyond pleading of party?

 So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn.

Ltd.

Ltd (supra); wherein the Court ruled as under: "..... 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 an 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 if 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........."

(Emphasis supplied)

91. The reading of the aforesaid extracted portion would go to show that the Apex Court has clearly ruled that if any objection is to be taken to the statement made in the affidavit, then such objection should always be taken before the court in writing and the attention of the witness should always be drawn while cross-examining him. In other words, it is not necessary to decide the objections relating to admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII Rule 4 of C.P.C. as they arise. The determination or decision thereon can be deferred to a later stage of the suit. However, final decision must be recorded before the Court proceeds to judgment. The irrelevant evidence brought on record can always be excluded as the 

question of admissibility of evidence is a question of law. Even the objection that a piece of evidence which was considered by the judgment was irrelevant can be taken up for first time in appeal (see Miller v. Madhodas,

Madhodas 23 Ind App 106 (PC). In Narhari v. Ambabai,

Ambabai AIR 1920 Bom 244, it was held that erroneous omission to object to irrelevant evidence does not make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not with the mode of evidence. If the evidence is irrelevant, consent of parties cannot make it relevant. Thus, more convenient mode is to admit the objection in the first instance, reserving question of law as to its admissibility until final judgment in the case1

Bombay High Court

Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008

Bench: V.C. Daga, P.V. Kakade

CORAM: SWANTANTER KUMAR, C.J.

V.C.DAGA, J. AND

V.M.KANADE, J.

DATED: 16th October 2008.

Citation;2008 (6)MH L J (FB)886

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When trial in civil suit will commence?

 In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in "Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others" 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a 

civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/ es.

Bombay High Court

Mahadeo S/O Maruti Bhanje vs Balaji S/O Shivaji Pathade on 4 September, 2012

Bench: Naresh H. Patil, U. D. Salvi

Citation;2012 (7)ALL M R 564

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Court has to be careful in admitting in evidence a mere statement pushed into record when it was not required.

The Plaintiff has sought to rely upon the affidavit of one Doctor who is stated to be her family doctor. The affidavit is filed in the previous Misc. Petition between the parties. That affidavit is not mandatorily required to be filed. The affidavit of the Doctor does not show any documents relied upon by the Doctor. The Doctor has since expired. The fact that he was a family Doctor has not been substantiated by any documentary evidence. The Doctor has not been cross examined.

47.Mr. Shah on behalf of the Plaintiff sought to rely upon his affidavit as the affidavit of a witness on behalf of the Plaintiff. He relied upon certain judgments with regard to the reliance upon affidavits as evidence. Such an affidavit can be allowed provided there are sufficient reasons. The entire evidence cannot be tendered by way of an affidavit. The Court may require particular fact or facts to be proved by affidavit. That will also have to be for special reason (See B.N. Munibasappa Vs. Gurusiddaraja Desikendra Swamigal AIR 1959 MYSORE 139 (V 46 C 55). If the cross examination is impossible, after 17 TS.78.94-TP.156.94.sxw

the deposition by way of examination-in-chief is made such deposition can be treated as the evidence on record depending upon the facts of the case. The Court has to carefully see whether a completed cross examination would seriously shake his testimony (See Mt. Horil Kuer Vs. Rajab Ali AIR 1936 Patna 34). When the opposite party does not controvert, it can be read in evidence (See Kanhaiyalal S. Dadlani Vs. Meghraj Ramkaranji AIR 1954 Nagpur 260 (Vol. 41, C.N. 91). When the witness dies before the cross examination, his evidence does not become inadmissible (See Ahmad Ali Vs. Joti Prasad AIR 1944 Allahabad 188).

48.In this case no evidence is led. Mere dispensing with cross examination does not arise. The witness' statement cannot be treated as a Dying Declaration. The affidavit is filed in a previous proceeding. The Doctor has not endorsed the Will itself. The Defendant's case is diametrically different from the case contained in this affidavit and the Defendant has examined another Doctor in that behalf. The Doctor has not endorsed the Will itself. The Court has to be careful in admitting the evidence a mere statement pushed into the record when it was not required.

49.Under the circumstances of this case the affidavit of the Doctor filed in the Petition and which is not his affidavit of examination-in-chief cannot be used as his evidence under Order 19 of the C.P.C.

Bombay High Court

Dr. Feroze Homi Duggan vs Jean Duggan on 3 August, 2011

Bench: R. S. Dalvi

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Whether court can direct deletion of portion of affidavit of examination in chief?

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 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.

Bombay High Court

Harakchand Gulabchand Dhoka vs Kashinath Narsingh Marathe on 15 January, 2010

Bench: A.S. Oka
Citation: 2010(6) Bom CR 379

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