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TMI Blog2020 (2) TMI 1726X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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. - Hon'ble Judges Prathiba M. Singh, J. For the Appellant : R.S. Kela, Advocate For the Respondents : Ruchir Batra, Advocate ORDER Prathiba M. Singh, J. 1. The present petition challenges the impugned order dated 23rd February, 2019, by which the ld. Sr. Civil Judge has directed the Plaintiff/Petitioner (hereinafter, Plaintiff ) to file a fresh affidavit by way of evidence. Some parts of the earlier affidavit were expunged by the Trial Court on the ground that the same were not reflected in the pleadings. 2. The submission of Mr. R.S. Kela, ld. counsel for the Plaintiff, is that the paragraphs which have been expunged are, in fact, only elaborating on or giving the factual foundation for the pleadings already contained in the plaint. Ld. counsel sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPC. The said provisions are set out below: ORDER XVIII Hearing of the suit and examination of witnesses .. 4. Recording of Evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof of admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. ORDER XIX Affidavits 3. Matters to which affidavits shall be confined.-(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same. 7. The Supreme Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 Supreme Court Cases 702 considered Rules 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in case of Amir Trading Corporation (supra). The Apex Court considered the scheme of the provisions of Rule 4 and Rule 5 of Order XVIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The Apex Court noted that as per the rule 4 of Order XVIII of the said Code, examination-in-chief in every case shall be on affidavit. In paragraph 19 of the decision, the Apex Court observed that the evidence of every witness will be in the form of an affidavit and what remains is only cross examination or reexamination. Paragraph 32 of the said decision reads thus: 32 The matter 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-in-chief is taken on an affidavit and in the event, he desires to cross examine the said witness he would be pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court certainly has a power to discard a part of the evidence while deciding the suit. 7 The Apex Court further held that even if the objection in writing is not filed, while cross examining the witness, the attention of the witness can be drawn to the objectionable portion of the affidavit. This is the second mode suggested by the Apex Court of raising an objection to any part of the affidavit. 8 The very object of amending rule 4 of Order XVIII of the said Code is to ensure that there is a speedy trial. The object is to ensure that the time of the Court is not wasted in recording the lengthy examination-in-chief. Consistent with the said object, it is obvious that the objection raised to any part of the affidavit in lieu of examination-in-chief will have to be considered at the time of final hearing of the suit or proceeding. The party raising objection cannot insist upon the Court considering the said objection before cross examination of the witness starts. In a given case, rival party may not raise objection in writing. As stated earlier, the party can cross examine the witness by inviting attention of the witness to the statements which according to the rival party are obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f evidence or can ignore such irrelevant part of evidence on which no cross-examination could be warranted. 12. In Ramesh Kumar Arora v. Bhola Nath Ors., 2011 (125) DRJ 356 a ld. Single Judge of this Court has held: 18. A perusal of the aforesaid Rule (4) of Order 18 shows that the purpose of conducting the examination in chief by way of affidavit is to cut short the delay in the recording of the evidence of the parties, as deciding the objection at that stage only causes delay in the disposal of the suit itself. 19. It may be pertinent here to refer to the portion which has been highlighted in the aforesaid Rule which clearly mandates that if a party has any objection then such an objection can be got recorded before the Local Commissioner and the question can be decided ultimately by the Court at the stage of final argument. The whole purpose and the scheme of the aforesaid order is to ensure that there is minimum loss of time in recording the evidence of the parties as it cause incalculable delay in the disposal of the suit. 20. In the instant case also, I feel that since the learned Local Commissioner who had been appointed was an experienced and seasoned Retired Additional Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conjecture and cannot controvert the pleadings on record of either party. 14. In daily practice, it is noticed that the affidavits in evidence are a 'cut and paste' from the plaint, which is not how they are supposed to be. The affidavit should contain facts which are to the personal knowledge of the deponent and the same cannot be a verbatim copy of the plaint. The affidavit in evidence can factually expand on a plea taken in the plaint, it can also support factual assertions made in the plaint but it cannot contradict or state facts which cannot be derived from the plaint. The practice of filing affidavits in evidence which replicate the plaint is incorrect and ought not to be permitted by Courts. Some guidance can be taken from the Delhi High Court (Original Side) Rules, 2018, which, in Rule 2 of Chapter XIX, specifically bar affidavits in evidence from reproducing pleadings/documents on file: 2. Evidence by affidavit.--The Court may upon any application of either party showing sufficient cause, order attendance, for cross examination of the deponent, and such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing more. 21. In paragraph 9, the deponent seeks to mention that the termination notice was never withdrawn. This is clear from a reading of the plaint itself wherein the notice of termination has been repeatedly reiterated. 22. In paragraph 11, the deponent is making a statement that the Defendant i.e., the son of Mr. J.C. Bahree was never acknowledged as a tenant. The filing of the suit itself and the seeking of possession is nothing but a clear indication that the Plaintiff does not treat the Defendant as a tenant. This again is not alien to the suit. 23. Insofar as the pleas in paragraphs 13 and 14 are concerned, the Defendant himself has disclosed in the written statement about the piped gas connection which he has taken from Indraprastha Gas Ltd. Thus, the mentioning of the same in the affidavit is not out of place. 24. In paragraph 15, the notice for production of original documents has been mentioned which is a development subsequent to the filing of the suit. 25. Finally, in the last paragraph, the basis for claiming mesne profits has been expanded. In the plaint, the Plaintiff has sought Rs. 10,000/- per month. However, in the affidavit, the Plaintiff is trying to pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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