2020 (2) TMI 1726 - HC - Indian Laws

Legality of the Trial Court s order to expunge certain portions of the affidavit-in-evidence - HELD THAT - A perusal of the impugned order dated 23rd February 2019 shows that the Trial Court has done a minute examination of the affidavit-in-evidence to expunge certain portions of the affidavit. This Court has perused the objectionable portions pointed out by the Defendant. Most of the objectionable portions including paragraphs 2 and 3 are primarily expanding on or giving further factual basis for what has already been pleaded in the plaint. In the plaint the Plaintiff has sought Rs. 10, 000/- per month. However in the affidavit the Plaintiff is trying to place on record a document to support the plea that the neighbouring properties are fetching Rs. 35, 000/- per month. The question as to what should be the mesne profits has to be adjudicated by the Trial Court. The Defendant is obviously at liberty to controvert the averments made in the affidavit-in-evidence. The modifications which have been directed by the Trial Court are not found appropriate. The affidavit-in-evidence shall be read as it is. The objections of the Defendant shall be recorded prior to or during the cross-examination and the same shall be considered at the time of final adjudication. The objections as to mode of proof admissibility etc. if raised would also be liable to be adjudicated at the final stage. Petition disposed off.

Summary

Issues Involved:
1. Legality of the Trial Court's order to expunge certain portions of the affidavit-in-evidence.
2. Legal framework governing affidavits in evidence.
3. Admissibility and relevance of facts stated in the affidavit-in-evidence.

Issue-wise Detailed Analysis:

1. Legality of the Trial Court's order to expunge certain portions of the affidavit-in-evidence:
The present petition challenges the impugned order dated 23rd February 2019, by which the Trial Court directed the Plaintiff to file a fresh affidavit by way of evidence, expunging certain portions deemed not reflected in the pleadings. The Plaintiff argued that the expunged paragraphs were merely elaborations of the factual foundation already contained in the plaint and did not introduce alien facts. Conversely, the Defendant contended that the affidavit included facts without basis in the pleadings and supported the Trial Court's decision to expunge those portions.

2. Legal framework governing affidavits in evidence:
The legal position on the filing of examination-in-chief by way of affidavit is established by amendments introduced in the Code of Civil Procedure, 1908 (CPC) in 2002. The relevant provisions are Order XVIII Rule 4 CPC and Order XIX Rule 3 CPC. The Supreme Court in *Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.* emphasized that objections to statements in the affidavit should be recorded and decided at the final stage, allowing cross-examination to proceed. The Bombay High Court in *Harakchand Gulabchand Dhoka v. Kashinath Narsingh Marathe* and other cases reiterated that objections to affidavits should be considered at the final hearing, and the Court has the power to discard irrelevant evidence while deciding the suit.

3. Admissibility and relevance of facts stated in the affidavit-in-evidence:
The Court analyzed various paragraphs of the affidavit-in-evidence to determine their relevance and adherence to the pleadings. It found that most objectionable portions expanded on or provided a factual basis for the plaint's assertions. For instance, paragraph 2 explained the deponent's role in managing the suit property, and paragraph 3 detailed the site plan's signing, both of which were relevant and within the deponent's knowledge. Paragraphs 4, 6, 8, 9, 11, 13, and 14 provided additional factual details supporting the plaint's claims. The Court noted that the affidavit should not merely reproduce the plaint but can expand on factual assertions without contradicting the pleadings.

Conclusion:
The Court concluded that the Trial Court's directive to expunge portions of the affidavit was inappropriate. The affidavit-in-evidence should be read as it is, with objections recorded before or during cross-examination and considered at the final adjudication stage. The objections regarding mode of proof and admissibility should also be adjudicated at the final stage. The Court directed the Trial Court to dispose of the suit within one year, disposing of the petition and all pending applications.