2014 (4) TMI 1310 - HC - Indian Laws

Scope of cross-examination - Requirement of examination in chief - Admissibility of portions of an affidavit in lieu of examination-in-chief - HELD THAT - 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. The so-called evidence affidavits are nothing but verbatim reproductions of pleadings replete with submissions and arguments (which should have no place in pleadings either) and very often even entire prayers. Now if this matter is not kept out of the scope of a cross-examination the consequences are unimaginable. A cross-examination would sprawl over several hundred pages and several thousand questions. This does happen and it happens repeatedly. I do not read Ameer Trading or any of the decisions cited to suggest that material that is wholly inadmissible and not permitted by the Evidence Act should be allowed to enter the record merely because CPC Order Rule 4 requires examination-in-chief to be on affidavit. By limiting the ambit of the evidence affidavit Mr. Nevatia s arguments are not restricted at the final hearing as to conclusions that he may invite the Court to draw based on the material on record. Indeed many of the statements made in the affidavit ought more properly to be taken during final arguments. List the suit for directions on 5th May 2014 at 3.00 p.m.

Summary

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.