9911796707
TMI Blog2010 (1) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a suit for specific performance of agreement of sale of the suit property. The suit is being contested by the respondent-defendant. After the petitioner adduced evidence, the respondent filed his affidavit in lieu of examination-in-chief. After the affidavit was filed, the petitioner filed an application at Exh.76 raising an objection to certain portions of the affidavit in lieu of examination-in-chief of the respondent on the ground that certain statements therein are required to be deleted. In the said application, the petitioner has set out the alleged objectionable statements in different paragraphs of the affidavit in lieu of examination-in-chief. It was contended that the respondent had made an application for seeking permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porated in the affidavit in lieu of examination-in-chief. He submitted that it will be unjust to compel the petitioner to cross examine the respondent on the said part of the affidavit in lieu of examination-in-chief. He placed reliance on the decision of the Apex Court in case of Ameer Trading Corporation Ltd. Vs.Shapoorji Data Processing Ltd. (AIR 2004 SC 355). He submitted that the Apex Court has held that there are two options available in such contingency. One option is to raise objection to the objectionable statements incorporated in the affidavit and the other option is to cross examine the deponent on the said statements. He submitted that the Apex Court has held that objection in writing can be filed and therefore, the said object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such as objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever the examination-inchief is taken on an affidavit and in the event, he desires to cross examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of crossexamining a witness, examined on behalf of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner is right when he says that the objection has to be considered. However, it is necessary to see at what stage it should be considered and in what manner the objection should be dealt with. Considering the scheme of the amended provisions of the said Code, objection raised in writing will have to be considered at the time of final hearing of the suit or proceeding. If on the basis of the objection , the Court finds that certain statements made in the affidavit are beyond the scope of the pleadings, the Court can always discard that part of the evidence while delivering the final Judgment. On the basis of such objection raised, the Court has no power to order deletion of the certain portions of the affidavit but the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion 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. 10 In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
