Affidavits in lieu of examination-in-chief cannot contain argumentative content or submissions, only factual evidence

The Bombay HC ruled that affidavits in lieu of examination-in-chief cannot contain argumentative content, submissions, or pleading-like traverses. The court found the plaintiff's affidavit impermissibly argumentative and containing submissions that should be reserved for final arguments. The HC emphasized that evidence affidavits must comply with Evidence Act requirements and cannot merely reproduce pleadings with arguments. The court clarified that limiting inadmissible content in affidavits does not restrict counsel's ability to make submissions during final arguments based on admissible record material.

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Issues Involved:
1. Admissibility of portions of an affidavit in lieu of examination-in-chief.
2. Court's power to delete portions of an affidavit.
3. Relevancy and admissibility of evidence.
4. Procedural versus substantive law in affidavit evidence.

Issue-wise Detailed Analysis:

1. Admissibility of Portions of an Affidavit in Lieu of Examination-in-Chief:
The judgment addresses the admissibility of certain portions of Mr. Nevatia's affidavit dated 10th March 2014, noting that substantial parts are submissions and arguments rather than evidence. The court clarifies that an affidavit in lieu of examination-in-chief should only contain admissible material, similar to direct evidence taken in the witness box. Arguments and submissions are not considered testimony and should not be included in such affidavits.

2. Court's Power to Delete Portions of an Affidavit:
The judgment discusses whether a court can order the deletion of portions of an evidence affidavit. Mr. Nevatia argued that the court has no such power, citing precedents that suggest an evidence affidavit is inviolate. However, the court distinguishes these cases, noting that they dealt with issues of relevancy, not admissibility. The court concludes that while it cannot delete portions of an affidavit, it can exclude or ignore inadmissible material without requiring cross-examination on those parts.

3. Relevancy and Admissibility of Evidence:
The court emphasizes that affidavits must conform to the requirements of the Indian Evidence Act and CPC Order 19, Rule 3. Evidence must be relevant and admissible, and hearsay or argumentative material should be excluded. The court notes that matters of relevancy can be deferred to the final hearing, but inadmissible evidence must be excluded immediately. The court provides a detailed analysis of the types of material that can be included in an affidavit and stresses the importance of excluding irrelevant, hearsay, and argumentative content.

4. Procedural Versus Substantive Law in Affidavit Evidence:
The judgment highlights the distinction between procedural and substantive law, stating that procedural rules under CPC Order 18, Rule 4 cannot expand the scope of substantive law under the Evidence Act. The court asserts that affidavits in lieu of examination-in-chief must adhere to both procedural and substantive legal requirements, ensuring that only admissible evidence is included.

Conclusion:
The court orders Mr. Nevatia to file a fresh affidavit in conformity with the legal requirements by 17th April 2014. It also specifies which portions of the existing affidavit are inadmissible and should be ignored during cross-examination. The judgment underscores the necessity of maintaining the integrity of evidence by excluding inadmissible material and ensuring affidavits adhere to both procedural and substantive law. The suit is listed for further directions on 5th May 2014.

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