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TMI Blog2014 (4) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... dings 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. - G.S. Patel, J. Mr. Gaurav Joshi a/w Ms. Neeta Jain, Mr. Avinash Joshi with Mr. Vipul Bilve i/b Mulla Mulla, for the Plaintiffs. Mr. Dileep Nevatia, Defendant No. 1 is present in person. Dr. B.B. Saraf i/b Bali Associates, for Defendant No. 5. ORDER PC:- 1. The 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an 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-examination 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 permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the court would not be wasted in examining such witness in open court. 5. This decision was followed, as it necessarily had to be, in the later decision of a learned single Judge of this Court, [AS Oka, J] in Harakchand Gulabchand Dhoka v Kashinath Narsingh Marathe [2010 (6) Bom CR 379 : 2010 (Supp) All MR 625] I do not see how either of these decisions is of any assistance to Mr. Nevatia. Both arose in the context of evidence b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 suit. 8. The very object of amending Rule 4 of Order XVIII of the said Code is to ensure that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n portions of the affidavit in evidence, again on the footing that there was no foundation laid for these statements in the pleadings. The case was decided on this narrow issue of relevancy. For the same reasons that I have discussed earlier, this decision does not advance Mr. Nevatia s cause. 8. Mr. Nevatia also relies upon a decision of the Supreme Court in Kishor Kirtilal Mehta vs Lilavati Kirtilal Mehta Medical Trust Ors. [2007 AIR SCW 5656] Before the High Court, some of the defendants filed an application for striking out portions of the plaintiff's affidavit in lieu of examination in chief. That application was accepted. The plaintiff then moved an application for amendment. That application too was dismissed. The High Court refused to stay the operations of its orders. The only question before the Supreme Court was whether the High Court was justified in refusing to stay the operation of its orders. The Supreme Court held that it would inconvenience the trial if evidence was shut out at that stage. This decision is no authority for the proposition that an affidavit in lieu of examination in chief may justifiably contain material that is not testimony properly so-called. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion under this sub-rule, consider taking into account such relevatn factors as it thinks fit: ORDER XIX Affidavits ... ... ... 3. Matters to which affidavits shall be confined. (1) Affidavits shall be confined to such facts as the deponent is able to 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. (emphasis supplied) 12. The emphasised portions of CPC Order 18 and Order 19 make this plain: no affidavit can contain material that is hearsay or argumentative. Leaving aside interim applications, every affidavit must be confined to fact that its deponent can prove. What Mr. Nevatia in effect suggests, therefore, is that CPC Order 18, Rule 4(1) somehow expands the scope of CPC Order 19 by permitting on affidavit matter that is either hearsay or argumentative or both, and also matter that is not to his personal knowledge. That submission, or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w any and every statement in such an affidavit, and that it increases the work of the court to sift through an affidavit at a preliminary stage is without substance. If material that is argumentative and other inadmissible under the Evidence Act is allowed in, this would necessitate a needlessly extended cross-examination. The court would then have to spend time during the cross-examination or, worse yet, at the final hearing, in analysing all this material directed to matter irrelevant and inadmissible. I expect this would increase a court s work and time expenditure by several orders of magnitude. 16. It is perhaps best to illustrate the legal position in the context of the evidence affidavits that are now before me. Mr. Nevatia s evidence affidavits contain material that fall in the following categories: (i) matters that are relevant and to his personal knowledge; (ii) matters that are possibly relevant but not to his personal knowledge; (iii) matters that are neither relevant nor to his personal knowledge; and (iv) statements in the nature of legal submissions, arguments and pleadings. 17. So far as the last of these is concerned, such submissions, arguments and contentions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orn testimony of a third person not called as a witness is patent. What a mans says he heard from another is unreliable for more reasons than one. 20. It is therefore the duty of a court to exclude hearsay evidence even if no objection is taken. The evil consequence of admission of hearsay evidence is not merely that it prolongs litigation and increases its cost, but that it may unconsciously be regarded by judicial minds as corroboration of some piece of evidence legally admissible and thereby obtain for the latter quite undue weight and significance. [Atkia Begum v Mohammed, AIR 1916 PC 250] Now it cannot be that merely because CPC Order 18 seeks to hasten trials therefore it, sub-silentio, permits the inclusion of inadmissible evidence, or that having the testimony on affidavit is a license to introduce into the record material that is inadmissible in law. 21. Consequently matters that are (i) argumentative or in the nature of submissions and pleadings etc.; (ii) matters that are wholly irrelevant and also not to the personal knowledge of the deponent or witness; and (iii) matters that are demonstrably hearsay, must all be excluded. They cannot form part of the examination-in-ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in a court s discretion. On the footing that a court s power to delete any portion of an evidence affidavit (even portions that are inadmissible) is completely taken away, a court may still rule on portions of the affidavit to which objections are taken and direct that those portions be excluded from consideration as testimony; i.e., that a crossexaminer will be at liberty to ignore those portions without fear of an adverse inference being drawn. 25. I believe an approach such as this is not just permissible, it is necessary. In matter after matter, I find that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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