TaxTMI 
TaxTMI 
2014 (6) TMI 1082
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.... 2. On 10th June 1998, the applicant herein filed testamentary petition No. 504 of 1998 interalia praying for probate of the alleged last Will and Testament of Nergish Keki Cassad @ Nergish Keki Casad. It is the case of the applicant that under the said alleged last Will & Testament dated 7th February 1996 of the said Mrs Nergish Keki (herein after referred to as the said deceased), the applicant as well as Dr Navroze S. Kotwal were appointed as executors of the said Will. Under the said alleged Will & Testament, some of the properties are bequeathed by the said deceased in favour of the applicant. Along with the said testamentary petition, the applicant filed an affidavit of Dr Navroze S. Kotwal affirmed on 10th June 1998. In the said affidavit, the said deponent stated that he was executor named in the last Will & Testament dated 7th February 1996 of the deceased. The applicant who is co­executrix has applied for the probate of the said last Will & Testament reserving his right of the said deponent to apply for the probate of the said Will. In the said affidavit, the said deponent reserved his right to come in and apply for the Probate of the said last Will & Testament ....
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.... contained in the said affidavit of Dr Kotwal are relevant to prove the case of the defendants pleaded in affidavit filed in support of the caveat. 7. By an order dated 4th March 2014, this Court allowed the said Judges Order holding that case was made out for issuing summons to Dr Kotwal who was admittedly one of the executor of the Will. Pursuant to the said order, Dr Kotwal appeared before this Court and agreed to file affidavit in lieu of examination­in­chief. 8. On 8th April 2014, Dr Navroz Kotwal filed affidavit of evidence in lieu of examination­in­chief. In the said affidavit of evidence. The witness reiterated the contents of his affidavit in reply to the counterclaim dated 30th May 2013 and also placed reliance upon certain portions/extracts from the said affidavit in reply in the said affidavit of evidence. By an order dated 9th April 2014, this Court recorded the submission made by the learned counsel appearing for the plaintiff that the entire affidavit of evidence of Dr Navroze Kotwal cannot be taken on record in evidence. This Court permitted the applicant to file appropriate application for raising such objection which can be considered by this Cou....
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....the affidavit in support of caveat filed by the defendants. Personal dispute between the applicant and the witness arising out of divorce proceedings cannot be brought on record in this proceedings which are totally irrelevant. In support of this plea, the learned counsel placed reliance on paragraph 7 of the Judgment of Supreme Court in case of Ravinder Singh Vs. Janmeja Singh & Ors reported in (2000) 8 Supreme Court Cases 191. Learned counsel appearing for the defendants placed reliance on paragraphs 10 and 11 of the said judgment so as to distinguish the said Judgement. Paragraphs 7, 10 and 11 of the Judgment in case of Ravinder Singh read thus : "7. The election petition is singularly silent of any such averment that the returned candidate, even if, it be assumed for the sake of the arguments, had published and distributed certain documents, (Annexures A­1 to A­7), as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as c....
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.... in respect of the commission of that corrupt practice. The reason for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any finishing and roving enquiry and save the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the allegation pertaining thereto, could not be put to trial the defect being of a fatal nature." 12. Mr Shah learned counsel placed reliance on the Judgment of Privy Council in case of Siddik Mahomed Shah Vs. Mt. Saran & Ors. Reported in A.I.R. 1930 Privy Council 57 (1) in support of his submission that no amount of evidence can be looked into upon a plea which was never put forward. The relevant part of the said judgment reads thus : Viscount Dunedin : This is a hopeless appeal. A certain the Khan is alleged by the appellant, who is in possession of certain lands which belonged to the Khan to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Court. After Hote Khan's death there was a transference of the....
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....her or not objected to by a party. The duty of a judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. (Stirland v. D.PP. . In R. v. Pitambar, Markby J. said : "The moment a witness commences giving evidence which is inadmissible he should be stopped by the court." 14. Mr Shah also placed reliance on an unreported judgment of this Court delivered on 22nd June 2009 in case of Atmaram N. Sukhthankar & Ors. Vs. Philips L. Kallath & Ors. in Suit No. 376 of 1979 in support of the submission that a party can be allowed to lead evidence only relevant to the matters already pleaded. It is submitted that since none of the portions of the affidavit which are highlighted in the affidavit in support of chamber summons are either relevant or pleaded in affidavit in support of caveat, such portion cannot be looked into for want of pleadings and shall be ignored. Plaintiff is not required to cross examine the witness on such irrelevant evidence with a view to save time. Paragraphs 1,2 and 3 of the said judgment read thus : 1. Defendants' witness Defendant No.&nbs....
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....dants to take recourse to application for amendment, if so advised, until now. Written Statement has been filed as back as in January, 1983. Recording of cross examination of the Plaintiffs' witness is commenced before me in May, 2009 having noticed that the matter was not progressing before the Commissioner inspite of sufficient indulgence shown by the Court. In other words, the matter cannot be deferred any further. In the circumstances, I have no hesitation in taking the view that the facts stated in the above mentioned paragraphs which are marked in the affidavit in lieu of examination in chief will be of no avail to the Defendants and cannot be looked into for want of pleadings in that behalf. The Plaintiffs will be free to cross examine the Defendants' witness on the assumption that the statements of facts mentioned therein are not on record. 15. Mr Shah learned counsel also placed reliance on the Judgment of Privy Council in case of Mst. Atkia Begam v. Muhammad Ibrahim Rashid Nawah reported in A.I. R. 1916 Privy Council 250. Relevant portion of the said judgment reads thus : "The other instance is furnished by the evidence taken on commission at Mecca, of one of the witn....
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.... amendment permitting the party to file affidavit in lieu of examination in chief of the witnesses and if the oral examination of the party who seeks to lead oral evidence was required to be recorded in the court, whether court could have permitted the party in examination in chief to lead any evidence which was not relevant to the issue. In my view, the court could not have permitted or would have stopped the party from leading evidence in examination in chief to the issue which were not relevant for the purpose of deciding the suit. The court cannot permit the party to lead an irrelevant evidence or evidence not related to the issue even in affidavit filed by way of examination in chief in lieu of oral evidence. Order 18 rule 4 in my view has to be read with Order 18 rule 2 which clearly provides that evidence has to be in support of the issues which party is bound to prove. In my view, since the defendant is not bound to prove nor it is relevant in the testamentary proceedings that the deceased who was alleged to have bequeathed particular property was not owner of the said property such part of evidence is irrelevant and can not be permitted by Court. If the court could not hav....
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....nt of the deceased is not relevant to the issue. What is deposed in paragraph 13 to 17 which dealt with the power of the testator to bequeath the property alleged to be ancestral property in which defendant has claimed rights are irrelevant to the issue. Since this court cannot decide these issues in the testamentary proceedings, no purpose would be served by allowing the witnesses to depose on these allegations which are not relevant to the issues involved and which the court cannot decide. 17. I, therefore, pass the following order: (a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief dated 18th March, 2013, being not relevant to the issue will not be read in evidence. Plaintiff is not required to cross examine the defendant in respect of such deposition made in paragraph 3, 4 and 13 to 17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate proceedings for adjudication of title before appropriate court. (b) Both the parties are directed to proceed with evidence in respect of the remaining paragraphs of the said affidavit expeditiously. (c) Application is disposed of in the aforesaid terms. There shall b....
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....ctions submits that defendant has no objection if last two lines of paragraph 4 of affidavit by which deponent has reiterated the contents of affidavit in reply to counterclaim dated 30th May 2013 is ignored for the purpose of cross­examination. Statement is accepted. It is submitted by the learned counsel that the plaintiff herself has referred to a joint Will and has pleaded that instructions were given to prepare the Will on the line of a joint Will. The applicant had serious dispute with her uncle. The deponent of the affidavit has deposed on the issue relating to her credibility. It is submitted that evidence is also led by the applicant herself making various allegations beyond the pleadings and unrelated to the issues framed. Evidence in rebuttal could be led by the defendant by examining Dr Navroze Kotwal. It is submitted that whether any portion of the affidavit is relevant or not, such objection can be taken on record at this stage and can be considered at the time of final hearing of the suit and not at this stage. Learned counsel submits that the deponent of the affidavit would be available for cross­examination by the applicant and thus no part of the evidence ....
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....of Civil Procedure would not apply. Court has power to consider the relevancy of evidence at the stage of hearing of a suit. Chamber summons itself can be kept in abeyance till disposal of suit and can be heard at the time of trial. Reliance is placed on paragraph 28 of the Judgment of Supreme Court in case of Vinod Seth Vs. Deveinder Bajaj & Anr. (2010) 8 SCC 1 which reads thus : 28. As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplate....
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....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 examination­in­chief. 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 examination­in­chief 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 examination­in­chief, it is the duty of the Cour....
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....e 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 examination­in­chief." 23. Mr Khandeparkar placed reliance on the Judgment of Supreme Court in case of Bipin Shantilal Panchal v. State of Gujarat (AIR 2001 Supreme Court 1158) in support of his submission that objection of the applicant about alleged irrelevancy of the portion of evidence can be kept in abeyance till the matter is finally heard. Paragraph 12 to 14 of the said Judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) read thus : "12. It is an ar....
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.... examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed an reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery of expenses." 24. Learned counsel also placed reliance on an unreported Judgment of this Court delivered on 5th November 2012 in case of Vijay Baburao Katore & Ors. Vs. Bhausaheb Baburao Katore & Ors. in Writ Petition No. 9033 of 2012 in support of the submission that the relevancy of the evidence, and the weightage given to such evidence can be considered by the Court at the time of final adjudication and at this stage, it is not appropriate for the Court to discard any part of the evidence. Paragraphs 5 to 7 of the said Judgment read thus : 5. With the assistance of learned counsel I have gone through the order. This Court in a ca....
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....edure. It is submitted that if Court comes to the conclusion finally that such portion of the evidence ought to have been omitted, that portion of the affidavit as well as cross­examination thereon can be ignored by the Court at the time of final hearing. 27. In rejoinder, Mr Shah learned counsel appearing on behalf of the applicant placed strong reliance on the Judgment of this Court in case of Rajendra Singh Kushwaha (supra) and also placed reliance on Section 136 of the Indian Evidence Act which was considered by this Court in the said Judgment. In so far as Judgment of Supreme Court in case of Bipin Panchal (supra) is concerned, it is submitted that it is distinguishable on the ground that several Judgments taking a different view by the Supreme Court have been delivered subsequent to the said Judgment. It is submitted that the defendants have not been able to show as to how such objected portion of the affidavit of evidence is supported by pleadings of the defendants. Learned counsel submits that this Court has to exercise powers under Section 136 of the Indian Evidence Act at this stage when evidence is sought to be tendered by the witness and thus the evidence being irr....
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.... Keki Cassad but in respect of the alleged Will & Testament of Mrs Nergish who was wife of the said Mr Keki Cassad. 29. In so far as portion of paragraph 6 on page 3 of the affidavit which is objected by the plaintiff is concerned, in the said paragraph, the deponent has deposed in respect of a separate Will of the uncle of the applicant which has nothing to do with the subject matter of this proceedings. The witness himself has filed affidavit in this proceedings as far back as in the year 1998 admitting the Will & Testament of the said deceased and had reserved his right to act as the executor in future. In my view, the objection raised by the plaintiff in respect of such portion of paragraph 6 as irrelevant evidence has merits. Neither such allegation is made in the affidavits in support of caveat nor any such issue is framed by this Court. Such part of the evidence thus cannot be considered in evidence and has to be ignored for the purpose of cross­examination. 30. In so far as portion of paragraph 6 on page 3 of the affidavit which is objected by the plaintiff is concerned, it is deposed by the witness that the applicant used to play cards almost every afternoon and used....
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....In so far as deposition in paragraph 10 at page 5 which is objected by the plaintiff is concerned, it is deposed by the witness that applicant took up the residence in Lotus Court only to prevent it going out to the hands of the rightful heirs of the said deceased is concerned. This deposition is also in my view, is totally irrelevant. Why the applicant shifted to Lotus Court or the same was with a view to prevent the said property go out to the hands of the rightful heirs of the said deceased cannot be decided in this proceedings nor the same is part of the pleadings. 35. In so far as deposition made in paragraph 12 at page 5 of the affidavit which is objected by the plaintiff is concerned, the witness has deposed that after demise of the said deceased, mother of the plaintiff had telephoned him to help the plaintiff and her mother to open a safe which was opened by the witness. In his presence, various jewellery were removed from the said locker in front of the witness. It is deposed that that the plaintiff had told the witness that she would give the jewellery to the children of uncle of the said deceased as the same were closest of kin to the said deceased. In my view, testame....
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....iled under Order XVIII, Rule 4 of Civil Procedure Code should be considered and decided by the Court. It is held that if any objection is to be taken to any statement made in the affidavit, such an objection should always be taken before the Court in writing and an attention of the witness should always be drawn while cross examining him. It is held that a determination or decision thereon can be deferred to a later stage of a suit, however final decision must be recorded before the Court proceeds to judgment. It is also held that irrelevant evidence brought on record can always be excluded as the question of admissibility of evidence is a question of law. It is held that if the evidence is irrelevant, consent of parties cannot make it relevant. Convenient mode to objection in the first instance, is reserving question of law as to its admissibility until final judgment in the case. The objection to the admissibility or relevancy of the evidence contained in the affidavit can be admitted at any stage reserving its resolution until final judgment. 41. In so far as judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) is concerned, the Full Bench of this Court in case ....
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....the deponent to file fresh affidavit after deleting the irrelevant part of evidence or can ignore such irrelevant part of evidence on which no crossexamination could be warranted. 43. Division Bench of this Court in case of Ayushakti Ayurved Pvt. Ltd. (supra) speaking through Shri Justice Dr D. Y. Chandrachud has held that before a trial Judge directs that evidence be recorded by a Commissioner, objections in regard to the admissibility of documents relied upon in the examination­in­chief should be decided by the trial Judge. The trial Judge does have an element of discretion in determining as to whether an objection to the admissibility of a particular document should be deferred to the final hearing, before the judgment is delivered in the suit. The Division Bench while taking such view has considered the fact that there is lengthy cross­examination before the Court Commissioner appointed by the Court for recording evidence causing lot of hardship to the litigants in terms of time and money. A Commissioner has no power to decide the objection as to admissibility and has to merely record the objection. It is held that judicial experience of proceedings before Commissi....
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....are beyond the pleadings or issues, the evidence being common. A party who does not choose to cross­examine the witness on the deposition made in the affidavit, always has an apprehension of being faced with an argument of waiver and/or evidence having remained uncontroverted. 45. In my view, if any part of the evidence is ex­facie irrelevant to the issue involved and is on the face of it beyond the pleadings of the parties, though dealing with such objection takes little time of the Court at the threshold, dealing with such objection at the threshold can save lot of time and money, in stead of keeping all such evidence for consideration at the time of final hearing of the suit after allowing parties to lead evidence on irrelevant issues before the Court Commissioner. Similarly, a party having cross­examined the opponent may press for making of such inadmissible document or to consider the evidence if it suits him. 46. This Court (R. D. Dhanuka, J.) in case of Rajendra Kushwaha (supra) has held that under Order 18 Rule 2 of the Code of Civil Procedure, a party is entitled to produce his evidence in support of all the issues which he is bound to prove and Court has to ....
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....ee to cross examine the witness of the defendants on the assumption that statements of facts mentioned therein were not on record. I am in agreement with the view taken by the learned Single Judge of this Court which in my view, squarely applies to the facts of this Court. Privy Council in case of Mst. Atkia Begam (supra) has also taken the same view. 49. In so far as submission of Mr Khandeparkar, learned counsel appearing for the defendants that in view of the material having been introduced by the applicant herself in evidence about the relationship between the applicant and the deceased testator, defendant is also entitled to produce counter evidence and in support of such submission, reliance on the Judgment of Supreme Court in case of Anil Rishi (supra) is concerned, a perusal of affidavit in lieu of examination­in­chief of the plaintiff does not indicate so. Be that as it may, even if any such evidence is brought on record by the plaintiff which was not objected to by the defendants when such evidence was tendered, evidentiary value of such evidence which if is found beyond the pleadings and/or irrelevant can be ignored by the Court at the time of final hearing of t....
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....has considered the effect of Section 136 of the Indian Evidence Act 1872 which is considered by this Court only in case of Rajendra Singh Kushwaha (supra) which Judgment is upheld by Division Bench of this Court. 52. Delhi High Court in case of Amarjit Kaur (Supra) has held that an omission to object to evidence not admissible under the Evidence Act does not make it admissible and it is the duty of the Judge to exclude inadmissible evidence whether or not objected to by a party. It is held that the duty of a Judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. The moment a witness commences giving evidence which is inadmissible he should be stopped by the court. I am in respectful agreement with the views expressed by the Delhi High Court in case of Amarjit Kaur (supra). 53. 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 th....