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

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELATE JURISDICTION
WRIT PETITION NO.180 OF 2010

Harakchand Gulabchand Dhoka …Petitioner
vs.
Kashinath Narsingh Marathe …Respondent

Mr.R.D.Soni i/b M/s.Ram & Co. for the petitioner
Mr.Tejesh Dande for the respondent

CORAM :A.S.OKA,J.
DATE : JANUARY 15, 2010

JUDGMENT :
1 Consideringig 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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