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TMI Blog2014 (6) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... y the caveators themselves and to that extent, this part of the evidence has to be ignored - The probate petition is not filed in respect of any alleged Will of her uncle Keki Cassad but in respect of the alleged Will Testament of Mrs Nergish who was wife of the said Mr Keki Cassad. The deponent has deposed in respect of a separate Will of the uncle of the applicant which has nothing to do with the subject matter of this proceedings. The witness himself has filed affidavit in this proceedings as far back as in the year 1998 admitting the Will Testament of the said deceased and had reserved his right to act as the executor in future - the objection raised by the plaintiff in respect of such portion of paragraph 6 as irrelevant evidence has merits. Neither such allegation is made in the affidavits in support of caveat nor any such issue is framed by this Court. Such part of the evidence thus cannot be considered in evidence and has to be ignored for the purpose of cross examination. The affidavits permitted to be filed under Order 18 Rule 4 in lieu of examination in chief has to contain only the deposition which is relevant facts in issue in the suit or relevant aspects which the wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said testamentary petition, the applicant filed an affidavit of Dr Navroze S. Kotwal affirmed on 10th June 1998. In the said affidavit, the said deponent stated that he was executor named in the last Will Testament dated 7th February 1996 of the deceased. The applicant who is co executrix has applied for the probate of the said last Will Testament reserving his right of the said deponent to apply for the probate of the said Will. In the said affidavit, the said deponent reserved his right to come in and apply for the Probate of the said last Will Testament dated 7th February 1996 of the deceased and further stated that he had no objection to the probate of the said Will being granted to the petitioner therein. 3. Upon filing caveats by the two caveators, the said petition was converted into a suit. In the affidavit in support of caveat, the caveators disputed that the said deceased at all executed any Will. The caveators also denied that the petitioner was executrix and Dr Navroze S. Kotwal was the executor of the said Will. 4. On 7th January 2002 this Court framed following issues. (1) Whether the plaintiff proves that the deceased (Nergish Keki Cassad) executed a Will dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit in reply to the counterclaim dated 30th May 2013 and also placed reliance upon certain portions/extracts from the said affidavit in reply in the said affidavit of evidence. By an order dated 9th April 2014, this Court recorded the submission made by the learned counsel appearing for the plaintiff that the entire affidavit of evidence of Dr Navroze Kotwal cannot be taken on record in evidence. This Court permitted the applicant to file appropriate application for raising such objection which can be considered by this Court. It was made clear that after deciding the objections proposed to be raised by the applicant in respect of part of the affidavit of evidence, parties can proceed with recording of evidence before the learned Commissioner. 9. On 17th April 2014, the applicant filed this chamber summons inter alia praying that some of the portion of the affidavit of evidence of Dr Navroze Kotwal be expunged from the affidavit or shall be ignored while recording his evidence. A schedule is appended to the chamber summons containing such objectionable portions of the affidavit which are sought to be expunged from the affidavit by the applicant. The defendants filed affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is singularly silent of any such averment that the returned candidate, even if, it be assumed for the sake of the arguments, had published and distributed certain documents, (Annexures A 1 to A 7), as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as correct on the basis of legal advice, this requirement emanating from Section 123(4) has been mentioned but without any assertion that the returned candidate in this case published the false statements knowing them to be false and/or not believing them to be true, The submission of Mr. Talwar, that at the trial, the petitioner could have said so in his evidence is futile. It is an established proposition that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings. 10. Proviso to Section 83(1) of the Act lays down, in mandatory terms, that where an election petitioner alleges any corrupt practice, the election pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission that no amount of evidence can be looked into upon a plea which was never put forward. The relevant part of the said judgment reads thus : Viscount Dunedin : This is a hopeless appeal. A certain the Khan is alleged by the appellant, who is in possession of certain lands which belonged to the Khan to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Court. After Hote Khan's death there was a transference of the lands in question by mutation of names effected upon the application of the Khan's widow. The Judicial Commissioners think it very probable that Hote Khan's widow being an ignorant person and with no one to help her, transferred the lands in that way in order that her spiritual adviser might hold them as trustee. The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of an, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since none of the portions of the affidavit which are highlighted in the affidavit in support of chamber summons are either relevant or pleaded in affidavit in support of caveat, such portion cannot be looked into for want of pleadings and shall be ignored. Plaintiff is not required to cross examine the witness on such irrelevant evidence with a view to save time. Paragraphs 1,2 and 3 of the said judgment read thus : 1. Defendants witness Defendant No. 12 has filed affidavit in lieu of examination in chief. He is personally present in Court and has offered himself for cross examination. Counsel for the Plaintiff however, submits that some of the facts stated in the affidavit filed by Defendant No. 12 in lieu of examination in chief are not pleaded in the Written Statement and cannot be allowed to be brought on record. My attention is invited to paragraphs 1,2,4,16, 18 and 23. In addition reference is also made to paragraph 3 where the witness has stated that the building known as Saguna , was of Society, which fact is not pleaded in the Written statement. In addition, in paragraph 6 of the evidence, the witness has stated that the other trustees were also well aware of the appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assumption that the statements of facts mentioned therein are not on record. 15. Mr Shah learned counsel also placed reliance on the Judgment of Privy Council in case of Mst. Atkia Begam v. Muhammad Ibrahim Rashid Nawah reported in A.I. R. 1916 Privy Council 250. Relevant portion of the said judgment reads thus : The other instance is furnished by the evidence taken on commission at Mecca, of one of the witnesses of the plaintiff in the suit, named Mohamed Said Shatta. After being examined by the person appearing for the defendant, he was re examined by the person appearing for the plaintiff, and was asked : Did you hear from anybody that Atkia Begum was of age? and he replied : I heard from my wife, who heard from the mother of Atkia Begum. . As a Commissioner before whom evidence is taken does not rule points as to the admissibility of evidence, it may be impossible to prevent questions and answers such as these appearing on the face of depositions. That, however, is not the point. The point is that the deposition appears to have been read in evidence as it stood, without any objection having been made to this undoubted hearsay. The evil consequence of the admission of such ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that evidence has to be in support of the issues which party is bound to prove. In my view, since the defendant is not bound to prove nor it is relevant in the testamentary proceedings that the deceased who was alleged to have bequeathed particular property was not owner of the said property such part of evidence is irrelevant and can not be permitted by Court. If the court could not have permitted the defendant to lead such evidence as not related to the issue involved under Order 18 rule 2, the court cannot permit the said party to lead evidence not related to the issue involved or the issue which the party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of examination in chief. 14. As far as maintainability of this Chamber summons is concerned, on perusal of Rule 121(5) and 121(38), in my view, since 121(5) applies to the pleadings and not to evidence, such rule will not apply to the application filed by the plaintiff for striking of the part of the evidence. As far as rule 121(38) is concerned, that gives discretionary power to the court to dispose of the matters which are not expressly required to be disposed of in the court by hearing the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made in paragraph 3, 4 and 13 to 17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate proceedings for adjudication of title before appropriate court. (b) Both the parties are directed to proceed with evidence in respect of the remaining paragraphs of the said affidavit expeditiously. (c) Application is disposed of in the aforesaid terms. There shall be no order as to costs. 17. Division Bench of this Court has rejected the appeal arising out of the said Judgment in case of Rajendra Singh Kushwaha (supra) delivered on 10th December 2013. Paragraphs 1 to 3 of the said order read thus : 1. The appeal challenges an order dated 29th October 2013 striking out certain portions ruling that the deposition made in paragraph Nos. 3, 4 and 13 to 17 of the affidavit in lieu of the examination in chief of the appellant dated 18th March 2013 are not relevant to the issue and, therefore, will not be read in evidence. The learned Judge held that the plaintiff, therefore, will not be required to cross-examine the appellant in respect of the deposition contained in the said paragraphs. 2. We do not for a moment suggest that Mr. Jagtiani's contentions on merits are without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that whether any portion of the affidavit is relevant or not, such objection can be taken on record at this stage and can be considered at the time of final hearing of the suit and not at this stage. Learned counsel submits that the deponent of the affidavit would be available for cross examination by the applicant and thus no part of the evidence can be expunged or ignored at this stage. Learned counsel placed reliance on the statements made in the chart annexed to affidavit in reply to demonstrate as to how each and every part of affidavit of evidence would be relevant and cannot be ignored at this stage. 20. Learned counsel submits that in the affidavit of evidence, the deponent has brought on record the relationship between the applicant and the deceased testator and her husband by way of counter evidence. Such material is introduced by the applicant herself in her evidence and thus defendant is entitled to produce counter evidence in the material introduced by the applicant. It is submitted that there can be evidence to bring on record in evidence counter to disprove the material brought on record by the plaintiff. The learned counsel placed reliance on the Judgment of Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplated by any law. 22. Mr Khandeparkar learned counsel placed reliance on the judgment of this Court in case of Harakchand Gulabchand Dhoka v. Kashinath Narsingh Marathe 2010 (6) Bom. C. R. 379 in support of his submission that even if any part of evidence is irrelevant or is beyond the pleadings filed by such party, rival party can record his objection in writing to the objectionable portion of the affidavit and the Court has power to discard such evidence while finally deciding the suit or proceeding. Party cannot insist upon the Court considering said objection before cross examination of the witness starts. Paragraphs 5 to 9 of the said judgment read thus : 5. I have carefully considered the submissions. It will be necessary to consider the decision of the Apex Court in case of Amir Trading Corporation (supra). The Apex Court considered the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding. 6. The submission of the learned counsel for the petitioner was that as the Apex Court has held that the aggrieved parties can file objections in writing to any portion of an affidavit in lieu of examination in chief, it is the duty of the Court to consider the objections on merits and to pass appropriate order dealing with the objections. The learned counsel 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 Court certainly has a power to discard a part of the evidence while deciding the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy of the portion of evidence can be kept in abeyance till the matter is finally heard. Paragraph 12 to 14 of the said Judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) read thus : 12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te for the Court to discard any part of the evidence. Paragraphs 5 to 7 of the said Judgment read thus : 5. With the assistance of learned counsel I have gone through the order. This Court in a case of Harakchand Dhoka Vs. Kashinath Narsingh Marathe referred supra has held thus : Specific Relief Act, 1963, Secs. 10 12 Code of Civil Procedure, 1908, O. 18 Rr.4 5 Court's power Scope Deletion of paras in affidavit in lieu of examination in chief Application rejected by Court holding it had no power to grant permission for its deletion Held, once an affidavit in lieu of examination inchief is filed, it partakes character of examination in chief. There is no provision in Code to enable Court to order its deletion. In case statement is irrelevant or beyond scope of pleadings an objection can always be taken in writing and Court can discard such portion while finally deciding suit. 2004(3) Bom. C. R. 583(S.C.). Trial Court is therefore, right to extent that it cannot order deletion of objectionable paras. But on merits application of appellant be treated as an objection to be decided by Court at appropriate state. 6. What the relevancy of said evidence, what is the weightage given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 136 of the Indian Evidence Act at this stage when evidence is sought to be tendered by the witness and thus the evidence being irrelevant, such objection has to be decided by this Court at this stage and cannot be kept pending for adjudication at the time of hearing of a suit. It is submitted that in none of the Judgments relied upon by the learned counsel appearing for the defendants, this Court has considered the effect of Section 136 of the Evidence Act. Mr Shah submits that substantial part of the evidence since being irrelevant and expungible, the applicant cannot be compelled to cross examine the witness on such irrelevant evidence. If the appeal Court comes to the conclusion that any portion of the evidence was wrongly being disallowed and or expunged by the trial Court, appeal Court has ample powers under Order 41 Rules 27 and 28 of the CPC to direct the trial Court to permit the parties to lead evidence on such issue or allow such evidence or documents to be produced or witness to be examined. 28. I have perused the affidavit of evidence of Dr Navroze Kotwal. In paragraph 6 on page 2, a portion of the said paragraph which is objected by the plaintiff, the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff is concerned, it is deposed by the witness that the applicant used to play cards almost every afternoon and used to go to rehearsals in the evening and was obsessed with becoming a celebrity and having her name and photos in the newspaper. On the death of the uncle of the plaintiff, the applicant left for Pune to return after two days. In my view, this part of the evidence is also totally irrelevant for the purpose of deciding this petition. Neither such allegation is part of the pleadings nor any issue in that regard is framed by this Court nor can be framed by the Court. 31. In so far portion of paragraph 7 on page 4 of the affidavit is concerned, the deponent has deposed that he never borrowed any money from the uncle of the plaintiff and it was the plaintiff only who had borrowed money from him on various pretext. In my view, this part of the evidence is also totally irrelevant to the these proceedings issue in question. No such allegation is even made in the affidavits in support of the caveats. Whether the deponent used to borrow any money from the uncle or not is irrelevant. 32. In so far as portion of paragraph 8 on page 4 of the affidavit which is objected by the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e children of uncle of the said deceased as the same were closest of kin to the said deceased. In my view, testamentary Court cannot go into the issue of title in respect of such jewellery and the said part of the deposition is totally irrelevant and is also beyond the pleadings. 36. In so far as part of the deposition made in paragraph 13 on page 5 of the affidavit is concerned, it is deposed by the witness that the applicant had gone and resided at the Lotus Court flat voluntarily and with a view to safeguard the said flat from the other heirs of the said deceased is concerned, in my view, this part of the evidence is also totally irrelevant as the same is beyond the scope of pleadings as well as the issues framed. 37. I am not inclined to accept the submission made by the learned counsel appearing for the defendants that the deposition regarding shifting of the plaintiff from her matrimonial home to the Lotus Court flat would reveal the conduct of the plaintiff and her well planned strategy to improve her claim vide alleged Will of the deceased. I am also not inclined to accept the submission that deposition about the jewellery of the deceased or that the same is deliberately ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in case of Bipin Shantilal Panchal (supra) is concerned, the Full Bench of this Court in case of Hemendra Rasiklal Ghia (supra) has held that the view expressed in that case is based on the peculiar factual matrix arising out of criminal trial which was prolonged for almost 10 years in beach of fundamental rights of the accused under Article 21 of the Constitution of India guarantying speedy and expeditious trial. The question referred for consideration of the Full Bench arose out of civil proceedings governed by the provisions of the Civil Procedure Code. The Full Bench followed the other judgments of Supreme Court in case of Smt. Dayamati Bai v. K. M. Shaffi (AIR 2004 SC 4082), P.C. Purshothama Reddiar V. S. Perumal (AIR 1972 SC 608) which dealt with the civil proceedings governed by the Code of Civil Procedure 1908. In my view, the Judgment of Supreme Court in case of Bipin Shantilal Panchal (supra) relied upon by the learned counsel for the defendant which was dealing with the criminal matter is clearly distinguishable and has been already interpreted by the Full Bench of this Court. In my view, the evidence whether in the form of affidavit or otherwise, only can be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection. It is held that judicial experience of proceedings before Commissioners appointed by the trial Judges of this Court on the Original Side shows only results in enlarging the scope of cross examination before the Commissioner. Commissioners charge fees for every session of recording evidence or part thereof. It is held that the ambit of the cross examination can be restricted by dealing with the question of admissibility of documents before recording of evidence before the Commissioner begins. Division Bench also considered the fact that if a decision on admissibility is deferred to final hearing of the suit and evidence is recorded without reference to a document of which admissibility is in dispute, segregation of that part of the evidence which relates to the document in question becomes a serious bone of contention at the final hearing of the suit. Cross examinations are rarely compartmentalized. Segregation of the evidence may not in every case be simple enough to resolve and would result in a considerable amount of uncertainty. If a party were not to cross examine a witness with reference to a document in relation to which an objection as to admissibility has been raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Court has to see whether evidence proposed to be led by the party is relevant in support of the issues involved. Only such evidence which is relevant in support of the issues, the party is bound to prove such issue. Any evidence which is not relevant to the issues involved, can be considered irrelevant. It is held that if an irrelevant evidence could not have been permitted prior to the amendment to Order 18 Rule 4, such irrelevant evidence cannot be introduced in the affidavit in lieu of examination in chief of the witness. In the same Judgment, this Court also considered the effect of Section 136 of the Indian Evidence Act and it is held that at the stage when the party proposes to give any evidence on any fact, the Court is empowered to ask such party who is proposing to give evidence, in what manner the alleged fact if proved would be relevant and the Court shall admit the evidence, if it deems that fact if proved would be relevant and not otherwise. The Court is empowered to consider whether to admit the evidence which would be relevant and not otherwise. 47. Division Bench in its order dated 10th December 2013 in Appeal (L) No. 474 of 2013 arising out of the Judgment of lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Supreme Court in case of Anil Rishi (supra) relied upon by the defendants is thus of no assistance to the defendants. 50. In so far Judgment of Supreme Court in Case of Vinod Seth (supra) relied upon by the learned counsel for the defendants is concerned, it held by the Supreme Court that powers under Section 151 of the Code of Civil Procedure cannot be invoked with reference to a matter which is covered by a specific provision in the Code. This Court in case of Rajendra Singh Kushwaha (supra) while dealing with Rule 121(5), 121(38) of the Bombay High Court (Original Side) Rules and Order 18 Rule 4 of the Code of Civil Procedure has held that Section 151 of the Code of Civil Procedure 1908 gives inherent powers to the court to strike of the irrelevant evidence at the stage of the party tendering affidavit in lieu of examination in chief with a view to avoid any further delay in the matter and to avoid any crossexamination on irrelevant issues. In my view, submission of learned counsel has thus no merits and the issue raised by the learned counsel is already decided by this Court in case of Rajendra Singh Kushwaha (supra). 51. In so far as Judgment of this Court in case of Harakch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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