2013 (10) TMI 1583 - HC - Indian Laws

Summary

Issues Involved:
1. Relevance of paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief filed by the defendant.
2. Maintainability of the application filed by the plaintiff for striking off parts of the affidavit.
3. Admissibility of evidence under Order 18 Rule 2 and 4 of the Code of Civil Procedure, 1908.
4. Application of Rule 121(5) and 121(38) of the Bombay High Court (Original Side) Rules.
5. Application of Section 136 of the Indian Evidence Act, 1871.

Issue-Wise Detailed Analysis:

1. Relevance of Paragraphs 3, 4, 13 to 17 of the Affidavit:
The plaintiff argued that paragraphs 3, 4, 13 to 17 of the affidavit were irrelevant to the issues of the will's valid execution and the deceased's state of mind at the time of execution. Paragraphs 3 and 4 discussed the deceased's residential address, which was deemed irrelevant to the probate petition. Paragraphs 13 to 17 raised disputes about the title of certain properties, which the court cannot decide in testamentary proceedings. The court agreed, stating, "this court cannot decide the title in respect of the properties of the deceased or any third party in this testamentary suit," and thus, these paragraphs were not relevant to the issues framed.

2. Maintainability of the Application:
The defendant contended that the application for striking off parts of the affidavit was not maintainable and should have been filed as a chamber summons under Rule 121(5) and 125(38) of the Bombay High Court (Original Side) Rules. The court held that Rule 121(5) applies to pleadings and not to evidence, and Rule 121(38) gives discretionary power to the court to hear matters in chambers. The court concluded that "section 151 of the Code of Civil Procedure, 1908, gives inherent powers to the court to strike off the irrelevant evidence at this stage."

3. Admissibility of Evidence under Order 18 Rule 2 and 4 of the Code of Civil Procedure, 1908:
The plaintiff relied on Order 18 Rule 2, which states that evidence must support the issues a party is bound to prove. The court emphasized that "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." The court further clarified that Order 18 Rule 4 must be read with Rule 2, and irrelevant evidence should not be allowed.

4. Application of Rule 121(5) and 121(38) of the Bombay High Court (Original Side) Rules:
The court found that Rule 121(5) does not apply to evidence but to pleadings, and Rule 121(38) allows the court to hear matters in chambers at its discretion. Therefore, these rules did not apply to the plaintiff's application for striking off parts of the affidavit.

5. Application of Section 136 of the Indian Evidence Act, 1871:
The defendant argued that the court should decide the admissibility of evidence at the final arguments stage under Section 136 of the Indian Evidence Act. The court disagreed, stating that "the court is empowered to consider whether to admit the evidence which would be relevant and not otherwise" at the stage when the party proposes to give evidence. The court concluded that it could strike off irrelevant evidence at this stage.

Conclusion:
The court ordered that the depositions made in paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief dated 18th March, 2013, were not relevant to the issues and would not be read in evidence. The plaintiff was not required to cross-examine the defendant on these paragraphs. The court directed both parties to proceed with evidence on the remaining paragraphs of the affidavit expeditiously and disposed of the application with no order as to costs.