TaxTMI 
TaxTMI 
2014 (4) TMI 1310
X X X X Extracts X X X X
X X X X Extracts X X X X
....ure, 1908 ("CPC")require that the "examination in chief" shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contain arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4. 3. Can a court order the deltion of portions of an evidence affidavit? Can it direct that portions of that affidavit are, either on the grounds of relevancy or admissibility or both, liable to be expunged from the record or excluded from consideration or, at any rate, ignored without fear of consequence in cross-examination? Mr. Nevatia would have it, on the strength of considerable precedent, that a court cannot, and that it has no such power. His submission is that an evidence affidavit, regardless of what it contains, is inviolate. It may contain hearsay material. It may contain all manner of irrelevant materia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aragraph 32 that I have quoted earlier. Harakchand Gulabchand was a decision in a writ petition against the trial court's order refusing to excise certain portions of the affidavit in lieu of examination-in-chief. Those portions were substantially the same as were earlier sought to be introduced by an amendment to the written statement. That application for amendment was disallowed. The defendant then introduced the material in the evidence affidavit, and the plaintiff sought striking out of the evidence on the footing that the application for amendment had been earlier rejected and therefore such evidence ought not to be permitted. 5. ... Once the affidavit in lieu of examination-in-chief is filed it partakes the character of the examination-inchief 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 affidav....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess 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. 6. The decision in Harakchand Gulabcha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Court. Once again this decision has no bearing on the subject at hand. 10. In a very recent decision of a learned Single Judge of this Court in Rajendra Singh Chhatrasal Singh Kushwaha v Jitendera Singh Rajendra Singh Kushwah & Ors., [2013 (6) Mh L J 802] again the Court held that where evidence proposed to be led by a party was irrelevant, and not in support of the issues that the party was bound to prove, that evidence must be excluded. The proceedings in Rajendra Singh's case were in the Testamentary and Intestate Jurisdiction of this Court. The evidence sought to be led related to the title to certain properties. In view the well settled law that questions of title cannot be decided in testamentary proceedings, the Rajendra Singh Court directed exclusion of certain portions of evidence affidavit as being ex-facie irrelevant. 11. The decisions that Mr. Nevatia relies on are, therefore, distinguishable. I must, at this stage, note the provisions of Order 18, Rule 4 and Order 19, Rule 3 of the Code of Civil Procedure, 1908, which read thus: ORDER XVIII Hearing of the Suit and examination of witnesses 4. Recording of evidence.- (1) In every c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion-in-chief for the purposes of CPC Order 18, Rule 4. 13. As Mr. Joshi points out, under Section 5 of the Evidence Act, evidence may be given in a suit of every fact in issue or of a relevant fact, and of no other. That section is specific and unambiguous. Material that is ex-facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded. 14. Generally speaking, matters of relevancy can be deferred to the stage of arguments; indeed, they must be. It is not always possible to say at the stage of examination-in-chief whether a given statement is or is not relevant. Some statements may be ex-facie entirely irrelevant; these might stand on a different footing, as the Rajendra Singh Court said. Therefore, unless the material is ex-facie entirely and demonstrably irrelevant, the affidavit evidence must retain the material provided it is a deposition of some fact that is to the deponent's knowledge. Matters of surmise, conjecture, arguments and in the nature of legal submission or in the nature of pleadings attempting to controvert what is stated in the plaint or the written statement are not evidence. They are, theref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idence should be permitted merely because the requirement is that an 'affidavit' be filed. 18. As regards items that are relevant and to his personal knowledge, this must, of course, be retained. These are his testimony and he will need to be cross-examined on these matters. The statements that are only possibly relevant, whether based on his personal knowledge or otherwise, are also matters that must be retained, for the issue of relevancy is always subject to final argument at the final hearing of the suit. But where material is completely extraneous and not to his personal knowledge, such material cannot possibly be part of testimony. The authorities cited, it must be noted, have all addressed the question of relevancy. 19. But testimony must be both relevant and admissible. If it is inadmissible, it cannot enter the record. Questions of admissibility, unlike those of relevancy, cannot be deferred. This is where we enter the grey zone of hearsay evidence. Such evidence is, under the Evidence Act, liable to be excluded. But what constitutes hearsay evidence, and whether testimony is given to prove a fact or merely to prove that a statement was made as to the existence of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 23. 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 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. 24. How should a court approach such a non-conforming affidavit, i.e., one that contains material that is clearly inadmissible or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hief dated 27th August 2010. This affidavit is in two parts. The first is, supposedly, his examination-in-chief as the defendant to the suit; and the second part is purportedly in support of his counter-claim. Ex-facie, a large part of this affidavit is argumentative and conjectural. Many portions of it are in the nature of inadmissible, hearsay evidence. Some portions of it purport to be oral testimony of documents already marked as exhibits. 28. It would have been advisable and probably in Mr. Nevatia's interest that even 2010 affidavit be replaced with one in conformity with law. However given the choice, he has elected to stay with his present affidavit. He does so at his peril; the cross-examination will not be curtailed on that account. 29. Mr. Joshi for the plaintiff in the suit, and Dr. Saraf, learned advocate for defendant No. 5 in the suit, will be at liberty to ignore and, without risk of adverse inference or other consequence, not be required to cross-examine Mr. Nevatia on the following portions of his affidavit dated 27th August 2010 in lieu of examination-in-chief: (a) In relation to the suit: Paragraphs 7 (all assertions as to the plaintiff being....