Notes on leading questions as per provisions of Indian Evidence Act

S. 141 of Indian Evidence Act:- Leading questions.—Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

In simpler terms, a leading question is one that prompts or guides the witness towards a particular response.

 S. 142 of Indian Evidence Act: When they must not be asked.—Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

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Whether the court can refuse maintenance to the wife if she gives contradictory admission in her cross-examination?

On perusal of entire material on record, it appears that the husband has heavily relied upon the statement made by the wife during her chief­examination to the effect that cheque given by the husband is dishonoured and, during her cross­examination, she has admitted that the cheque was encashed. Thus, solely on this ground, it is argued that the wife is making false statements and she is not entitled to get any maintenance from the husband. It is well settled that entire evidence, which includes chief­examination, cross­examination and re­examination if any, is required to be appreciated. Lapses or incorrect statement or false version put forward in chief­examination is not sufficient to discard other facts narrated in the deposition of the wife. Therefore, the stand taken by the husband against such statement cannot be accepted and the argument that the wife is not entitled to receive maintenance due to this, is devoid of merits.

Gujarat High Court

Ajitbhai Mohanbhai Parghi vs State Of Gujarat on 3 September, 2020

Bench: A. P. Thaker

   R/CR.RA/74/2020                                      

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Whether court can permit further examination of witness after his cross-examination?

Perusal of the evidence of the concerned photographer indicates that he

had clearly deposed that he had brought the memory card as well as compact disk

with him in Court. The trial Court however marked the photographs as Articles as

there was no certificate in terms of Section 65 B (4) of the said Act. It is seen that

on the same day, the plaintiff moved the application at Exhibit 104. The trial Court

ought to have allowed that application in the light of the examination-in-chief of the

photographer in which he had stated that he had brought the memory card and the

compact disk in Court. There is no question of wiping out any admission in the

cross-examination in the light of the fact that the photographs had been marked as

Articles. Moreover, the deposition of the said photographer as a whole would have

to be considered so that the aspect of wiping out admission if any is taken care of.

The trial Court was therefore not justified in rejecting the said application.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 4298/2019

Vasant Janrao Gaoner Vs  Rajkanya  Manikrao Ughade

CORAM : A.S.CHANDURKAR, J.

DATED : 24.09.2019

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Whether cross examination should be restricted to what witness has stated in his examination in chief?

In Yeshpal's case (Supra) it has been observed that,

“While Courts will not ordinarily interfer with the proper exercise of the

right of cross-examination the Courts have the power and authority to

control the cross-examination of a witness”.

This Court is not agreeing with the submission by learned Advocate

for petitioners that, the Court cannot control the cross-examination

or he has free hand at the time of cross-examining the witness of

the prosecution; but then agree to the submission that the crossexamination

need not be restricted to what the witness has stated in

his examination-in-chief. A balance has to be struck here while

issuing directions to the learned Additional Sessions Judge that he

has to decide the relevancy of the question which he may get

explained from the learned advocate for the accused orally and then

allow him to put the said question to the witness. On any count

learned Additional Sessions Judge will not be justified in entirely

putting the shutter down while disallowing of the questions and

asking the defence advocate to restrict himself while crossexamining

P.W.18 to the post mortem examination report Exhibit

216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore,

again clarified that neither the learned advocate for the accused has

unfettered right to put any question to the witness in the crossexamination

but at the same time the learned Additional Sessions

Judge shall also not restrict him in putting questions in the cross to

the above referred documents only. There might be certain

questions which would be beyond those documents and as an expert

they are required to be elucidated from him. No straight jacket

formula can be laid down as to what should be permitted and what

should not be permitted as it depend upon the question that would

be put and the relevancy and admissibility of the same and / or of

the admissibility will have to be decided at that time. Definitely the

learned Additional Sessions Judge is guided by the procedure laid

down in Bipin Panchal’s case (Supra), and it is specifically laid down that,

it may be advantages for the Appellate Court in future. He has to

bear those advantages which have been laid down in para No.15 of

the case, in mind while recording the evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1764 OF 2019

 Sanjay Shankar Bhalkar, Vs The State of Maharashtra. 

CORAM : SMT.VIBHA KANKANWADI, J.

Dated  : 13-01-2020.

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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 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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NOTES ON COURT COMMISSIONER

S 75 of CPC provides that court may a commission-

a) to examine any person;

b) to make a local investigation;

c) to examine or adjust accounts;

d) to make partitions;

e) to hold a scientific, technical or expert investigation;

f) to conduct the sale of property which is subject to speedy and natural decay, and which is in custody,of the court pending the determination of suit; or

g) to perform any ministerial act;

Read important judgments on court commissioner:

Click here

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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 examination in chief of defendant can be discarded on application of plaintiff?

 Defendant No. 04 filed his affidavit in chief and in fact, it was read and recorded after verification by the trial court. Therefore, when it has become part of evidence, it cannot be so discarded for which there is no specific provision. When it was enquired with the learned Counsel for the respondent, as to under which provisions of law said application Exhibit 49 has been submitted, initially he pointed out Order XVIII of the Code of Civil Procedure [For short, "C.P.C."] and then submitted that if there is no specific provision, then it should be considered under Section 151 of the C.P.C. I do not agree with this submission. Order XVIII of the C.P.C. deals with hearing of the suit and examination of witnesses. The provision is made in respect of right to begin, statement to be made, order of recording evidence and how evidence shall be in appealable cases, etc. There is absolutely no provision to discard a piece of evidence which has been admitted. The respondent cannot lay his hand on Section 151 of the C.P.C. which is in respect of inherent powers of the court. In fact, the said section can be invoked in order to prevent abuse of process of the court and not to abuse it. After the affidavit of examination in chief of defendant No. 04 was read and recorded, it had become part of the evidence and, therefore, such part of the evidence cannot be discarded. In Banganga Co-operative Housing Society v. Vasanti Gajanan Nerurkar & others [MANU/MH/1020/2015 : 2015 (5) Bom.C.R. 813], this Court has held that the affidavit cannot be withdrawn as it has become part of the record. Similarly, it cannot be discarded when it has become part of the record.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 06959 of 2017

Decided On: 29.11.2017

Shrimant Amrut Rohokale and Ors. Vs. Bhaskar Shrimant Rohokale and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

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Whether examination in chief of wife can be relied on if she fails to remain present for cross examination?

 In a matrimonial dispute, testimony of the contesting spouse to refute
the accusations made in the pleadings in divorce petition plays a major role.
In the instant case, unfortunately the wife (RW-1) failed to appear at the
relevant stage to conclude her cross-examination. Learned Judge, Family
Court has noted, and rightly so, that her incomplete statement cannot be read
in evidence. Now we are left with remaining seven witnesses examined by
her. They are not going to have any significant effect on the defence of the
wife.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: September 06, 2016
 MAT.APP.(F.C.) 15/2015
GEETA PANDEY 
v
SHEKHAR PANDEY 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI
Citation: AIR 2017 Delhi 70

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Whether trial in civil suit commences on framing of issues or on filing of affidavit of examination in chief?

 In Ajit Narsinha Talekar's case (Supra), learned Single Bench of this Court with reference to the observations made by Hon'ble Apex Court in Vidyabai's case commented as follows :

Relying upon a decision of the Supreme Court in Vidyabai V. Padmalatha, MANU/SC/8401/2008 : AIR 2009 SC 1433, counsel for the respondents submitted that the trial commence on issues being framed. He invited my attention to paragraph 8 of the said decision which reads thus :

The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding

placing strong reliance on the sentence "the date on which the issues are framed is the date of first hearing", counsel submitted that the moment the issues are framed the trial commences. In my view, this is misreading of the judgment. It is a settled principle of law that judgments of Courts are not to be read as a statute. A sentence in the judgment cannot be read in isolation. It must be read in the context in which it appears and cannot be read as a provision of a statute. The expression " the date of first hearing" appearing in second sentence of the above quoted paragraph is to be read in the context of subsequent sentence which reads " Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding." The Supreme Court has only said :

framing of issues is the first date of hearing" but that does not mean that on framing of issues the trial has commences. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Some times the matter is not even called out because the Court remains busty in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. That is commencement of the trial.

No different view is taken by other single benches of this Court in Bhagwandas Bubna's case and Vinod s/o Khimji Lodaya's case (Supra).

15. 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

Hon'ble Judges/Coram:

N.H. Patil and U.D. Salvi, JJ.

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Whether tribunal can reject claim petition on ground that claimant was not understanding content of affidavit of examination in chief?

In   the   present   case   the   appellant   had   no   knowledge   of
English   but   her   affidavit   had   been   prepared   in   English.     In   such

situation   it   was   necessary   for   the   Tribunal   to   have   taken   into
consideration said aspect and it could have directed the appellant to
prove her case on the basis of an affidavit prepared either in Hindi or
in vernacular.   The Tribunal could have insisted for filing an affidavit
in   a   language   understood   by   the   claimant.     Merely   because   the
claimant's counsel  had prepared the affidavit in English, a language not
understood by the appellant, same would  be no reason to dismiss the
claim by holding that claimant had not proved her case.  
It is to be noted that the provisions of Chapter XIII of the Act
of 1989 are beneficial provisions aimed at awarding compensation on
account of untoward incidents to ensure that compensation is granted
in  a  deserving  case.   It  is always open  for  the  Claims Tribunal  in
exercise of the powers conferred under Section 18(1) of the   Act of
1987 to regulate its own procedure and insist for filing an affidavit in a
language understood by the claimant especially when it is the mandate
of   Section   18(1)   that  the   Claims   Tribunal    has   to   be   guided   by
principles of natural justice.   In that view of the matter the Claims
Tribunal was not justified in non­ suiting the appellant on the ground
that her affidavit was filed in English and that she was not aware of its
contents.  The impugned order therefore cannot be sustained on that
count.  The point as framed is answered accordingly.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
APPEAL   AGAINST   ORDER  NO.    49    OF     2004
Shilabai wd/o Raghunath Hemne,
V
Union of India 
CORAM:   A. S. CHANDURKAR  J.
Dated    :   SEPTEMBER  14, 2015.
Citation;2016(3) MHLJ345

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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 court can record further examination in chief of plaintiff?

The Counsel for the Defendants, would, however, argue that in the examination-in-chief, the Plaintiff has made no mention about the fact as to who had signed the said document and whether it was signed in his presence or that he was in a position to identify the signature appearing on the said document. According to the Defendants, this evidence ought to have come in the affidavit in lieu of examination-in-chief as is required to be filed in terms of Order XVIII Rule 4 of the C.P.C. It was argued that although the Plaintiff later on entered the witness box and his further examination-in-chief has been recorded by the Court, in which all necessary details are mentioned in relation to the suit Bill of Exchange, that evidence cannot be looked into. This argument deserves to be merely stated to be rejected. There is nothing in the amended C.P.C. which precludes the Court from recording further examination-in-chief of the Plaintiff. In the present case, recording of further examination-in-chief of the Plaintiff was necessitated as the Defendants admitted all documents relied by the Plaintiffs, except the suit Bill of Exchange. For that reason, the Plaintiff, upon entering the witness box, was first examined for the purpose of further examination-in-chief. He deposed about the details in relation to the execution of said document, whereafter the document was taken on record and marked as Exhibit P-9. Ideally, the Plaintiff could have spoken about such details in the affidavit filed in lieu of examination-in-chief itself. However, failure to mention those details in the affidavit does not preclude the Plaintiff to enter the witness box to depose further; nor does it preclude the Court from permitting the Plaintiff to lead further evidence of examination-in-chief before the Court in addition to the affidavit in lieu of examination-in-chief already placed on record, filed in terms of Order XVIII Rule 4 of C.P.C. All that the Court ought to ensure is that the Defendants get fair opportunity to cross-examine the Plaintiff on matters deposed by him in the further examination-in-chief.

Bombay High Court

Rajesh Varma vs Aminex Holdings And Investments, ... on 10 January, 2008

Bench: A Khanwilkar

Citation; AIR 2008(NOC)1385 Bom,2008 (2) BomCR 588

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Whether public prosecutor can be permitted to ask leading question in examination in chief?

Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answer to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the Court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give, his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner to which the witness by answer merely "yes" or "no" but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and,obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.
Supreme Court of India

Varkey Joseph vs State Of Kerala, Represented ... on 27 April, 1993

Equivalent citations: 1993 AIR 1892, 1993 SCR (3) 390

Bench: Ramaswamy, K.

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Whether conviction can be recorded on the basis of examination in chief if witness turns hostile in cross examination?

 It is settled principle of law that benefit of reasonable
doubt is required to be given to the accused only if the
reasonable doubt emerges out from the evidence on record.
Merely for the reason that the witnesses have turned hostile
in their cross-examination, the testimony in examination-in-
chief cannot be outright discarded provided the same
(statement in examination-in-chief supporting prosecution) is
corroborated from the other evidence on record.
In other words, if the court finds from the two different statements
made by the same accused, only one of the two is believable, and
what has been stated in the cross- examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the  testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 892 OF 2009

Selvaraj @ Chinnapaiyan V State represented by Inspector of Police

PRAFULLA C. PANT, J.
dated;December 09, 2014.

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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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Whether accused can raise plea that trial is vitiated as they were not provided proper legal assistance?

Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt, 

SUPREME COURT OF INDIA
Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747

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