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Landmark Judgment on drafting of affidavit of examination in Chief


Bombay High Court

Harish Loyalka And Another vs Dileep Nevatia And Others on 7 April, 2014

The 1st defendant to the suit and the plaintiff to the counter-claim, Mr. Nevatia, has filed a further affidavit dated 10th March 2014 in lieu of examination in chief. Substantial portions of this affidavit, notably from the fourth line of paragraph 12 to the end of that paragraph, and from paragraph 14 onwards are in the nature of submissions, arguments and not in the nature of evidence. Mr. Joshi, learned senior counsel for the plaintiffs to the suit is justified in his contention that he ought not to be required to cross-examine Mr. Nevatia on these submissions as they are not testimony.

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2. The provisions of Order 18 Rule 4 of the Code of Civil Procedure, 1908 ("CPC")require that the "examination in chief"

shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contain arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4.

3. Can a court order the deltion of portions of an evidence affidavit? Can it direct that portions of that affidavit are, either on the grounds of relevancy or admissibility or both, liable to be expunged from the record or excluded from consideration or, at any rate, ignored without fear of consequence in cross-examination?

Mr. Nevatia would have it, on the strength of considerable precedent, that a court cannot, and that it has no such power. His submission is that an evidence affidavit, regardless of what it contains, is inviolate. It may contain hearsay material. It may contain all manner of irrelevant material, directed neither to facts in issue nor to relevant facts. It may also contain inadmissible matter, such as statements in the nature of submissions, arguments and traverses of pleadings. All this, Mr. Nevatia says, is his 'evidence', and must be left untouched.

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4. Mr. Nevatia first relies on the decision of the Supreme Court in Ameer Trading Corporation Ltd v Shapoorji Data Processing Ltd. 1 In particular, he emphasizes paragraph 32 of that decision: 2 "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 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, 3 in Harakchand Gulabchand Dhoka v Kashinath Narsingh Marathe.4 I do not see how either of these decisions is of any assistance to Mr. Nevatia. Both arose in the context of evidence being attempted to be led in excess of the pleadings; both therefore dealt with issues of relevancy, not admissibility. In Ameer Trading, a distinction was sought to be drawn between appealable and non-appealable cases for the purposes of taking evidence on affidavit. The argument was that CPC Order 18, Rule 4 has no application to appealable cases.

AIR 2004 SC 355 : (2004) 1 SCC 702 Of the AIR report; paragraph 33 of the SCC AS Oka, J 2010 (6) Bom CR 379 : 2010 (Supp) All MR 625 3 of 18 S3598-96.DOC This was rejected by the Bombay High Court and later by the Supreme Court on appeal. The Supreme Court's stress was on the mischief sought to be avoided by the 2002 amendment to the CPC, viz., continued delay in completing trials. This is apparent from the emphasised portion of paragraph 32 that I have quoted earlier. Harakchand Gulabchand was a decision in a writ petition against the trial court's order refusing to excise certain portions of the affidavit in lieu of examination-in-chief. Those portions were substantially the same as were earlier sought to be introduced by an amendment to the written statement. That application for amendment was disallowed. The defendant then introduced the material in the evidence affidavit, and the plaintiff sought striking out of the evidence on the footing that the application for amendment had been earlier rejected and therefore such evidence ought not to be permitted.

5. ... Once the affidavit in lieu of examination-in-chief is filed it partakes the character of the examination-in-

chief of the concerned witness. There is no provision under the said Code under which the Court can direct deletion of any portion of an examination-in-chief. Nevertheless, an objection can always be taken by the rival party in writing to any objectionable portion of the affidavit. Moreover, the attention of the witness can be always invited to said portion while cross examining him. If there are irrelevant statements in the affidavit in lieu of examination- in-chief and if there are statements which are beyond the scope of the pleadings, the rival party can always record his objection in writing to the objectionable portion of the affidavit. The law is well settled. A party to the suit cannot be permitted to travel beyond his pleadings. If any evidence is tried to be adduced which has no foundation in the pleadings, the Court always has a power to discard such evidence while finally deciding the suit or proceeding.

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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 suit.

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 objectionable. Even in such a case, at the time of final hearing, objection will have to be considered by the Court though there may not be any specific objection in writing. It is always the duty of the Court to decide as to how 5 of 18 S3598-96.DOC much evidentiary value should be given to a particular piece of evidence. If a portion 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.

6. The decision in Harakchand Gulabchand Dhoka is also of no assistance to Mr. Nevatia. There, too, the Court was dealing with the issue of relevancy and of material sought to be introduced in the evidence affidavit but without a foundation being laid in pleadings.

7. Before the Harakchand Dhoka Court, reliance was placed on a decision of another learned Single Judge of this Court in Cesar Rego Fernandes & Ors. v Angela Ninette Oliveira Fernandes & Ors.5 Before the writ court in Cesar Rego Fernandes, the challenge was to an order by which the Civil Judge directed deletion of certain 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.

2007 (6) All M R 499; 2008 (1) BCR 270; 2008 (2) Mh L J 159.

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8. Mr. Nevatia also relies upon a decision of the Supreme Court in Kishor Kirtilal Mehta vs Lilavati Kirtilal Mehta Medical Trust & Ors.6 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.

9. Finally, Mr. Nevatia relies upon the Full Bench decision of this Court in Harish Vitthal Kulkarni & Anr. v Pradeep Mahadeo Sabnis & Anr.7 Several issues were framed and decided by the Full Bench. The present issue did not arise in the matter before the Full Bench. As regards Order 18 Rule 4, the Full Bench held that the Court retains the discretion to record cross-examination and re- examination of a witness either in Court or to direct that it be taken before a Commissioner. It rejected the argument that all cross- examinations must be taken before the Court. Once again this decision has no bearing on the subject at hand.

2007 AIR SCW 5656 AIR 2010 Bombay 178 7 of 18 S3598-96.DOC

10. In a very recent decision of a learned Single Judge of this Court in Rajendra Singh Chhatrasal Singh Kushwaha v Jitendera Singh Rajendra Singh Kushwah & Ors.,8 again the Court held that where evidence proposed to be led by a party was irrelevant, and not in support of the issues that the party was bound to prove, that evidence must be excluded. The proceedings in Rajendra Singh's case were in the Testamentary and Intestate Jurisdiction of this Court. The evidence sought to be led related to the title to certain properties. In view the well settled law that questions of title cannot be decided in testamentary proceedings, the Rajendra Singh Court directed exclusion of certain portions of evidence affidavit as being ex-facie irrelevant.

11. The decisions that Mr. Nevatia relies on are, therefore, distinguishable. I must, at this stage, note the provisions of Order 18, Rule 4 and Order 19, Rule 3 of the Code of Civil Procedure, 1908, which read thus:

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 and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
2013 (6) Mh L J 802 8 of 18 S3598-96.DOC (2) The evidence (cross-examination and re- examination of the witness attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission 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.--
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, 9 of 18 S3598-96.DOC or any submission that tends to have that result, needs only to be stated to be rejected. An affidavit in lieu of examination-in-chief is constrained by these two factors: (a) it must examination-in-chief;

and (b) it must be an affidavit. This means that it must conform to the requires of the Indian Evidence Act, and to the provisions of CPC Order 19, Rule 3. A document that does not is, therefore, neither an affidavit nor examination-in-chief for the purposes of CPC Order 18, Rule 4.

13. As Mr. Joshi points out, under Section 5 of the Evidence Act, evidence may be given in a suit of every fact in issue or of a relevant fact, and of no other. That section is specific and unambiguous. Material that is ex-facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded.

14. Generally speaking, matters of relevancy can be deferred to the stage of arguments; indeed, they must be. It is not always possible to say at the stage of examination-in-chief whether a given statement is or is not relevant. Some statements may be ex-facie entirely irrelevant; these might stand on a different footing, as the Rajendra Singh Court said. Therefore, unless the material is ex-facie entirely and demonstrably irrelevant, the affidavit evidence must retain the material provided it is a deposition of some fact that is to the deponent's knowledge. Matters of surmise, conjecture, arguments and in the nature of legal submission or in the nature of pleadings attempting to controvert what is stated in the plaint or the written statement are not evidence. They are, therefore, not examination in chief.

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15. The decisions on which Mr. Nevatia relies only say that it is not permissible for a Court to delete portions of an affidavit in lieu of examination in chief. That proceeds on the footing that what the witness has stated in that affidavit is in fact in the nature of examination in chief and not otherwise. Where the statements made on affidavit cannot possibly be in the nature of examination in chief, it would defeat the manifest legislative intent and purpose of expedition and saving of judicial time that lies at the heart of CPC Order 18 Rule 4 to permit all manner of extraneous material to be stated on affidavit and to disguise that affidavit as an affidavit in lieu of examination in chief. The argument that it "saves time" to allow 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.

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17. So far as the last of these is concerned, such submissions, arguments and contentions are clearly not "examination in chief".

They may be used in oral or written arguments at the final hearing, but they cannot possibly form any part of the witness's testimony. Had Mr. Nevatia been in the witness box and had he attempted to make any of these submissions and arguments, they would have been excluded and not entered the record. There is no reason why material that would not have then been allowed in evidence should be permitted merely because the requirement is that an 'affidavit' be filed.

18. As regards items that are relevant and to his personal knowledge, this must, of course, be retained. These are his testimony and he will need to be cross-examined on these matters. The statements that are only possibly relevant, whether based on his personal knowledge or otherwise, are also matters that must be retained, for the issue of relevancy is always subject to final argument at the final hearing of the suit. But where material is completely extraneous and not to his personal knowledge, such material cannot possibly be part of testimony. The authorities cited, it must be noted, have all addressed the question of relevancy.

19. But testimony must be both relevant and admissible. If it is inadmissible, it cannot enter the record. Questions of admissibility, unlike those of relevancy, cannot be deferred. This is where we enter the grey zone of hearsay evidence. Such evidence is, under the Evidence Act, liable to be excluded. But what constitutes hearsay evidence, and whether testimony is given to prove a fact or merely to prove that a statement was made as to the existence of 12 of 18 S3598-96.DOC that fact is another matter altogether. If, for example, a witness attempts to say that he heard someone say that a particular event occurred, this is not proof of occurrence of that event. It is clearly hearsay. But the statement is unexceptionable if it is merely evidence that a particular statement was heard to be made, not proof of the occurrence of the event itself. Sarkar on Evidence puts it thus:

"Broadly speaking, therefore, a witness cannot be called in proof of a fact to state that heard some one else state it to another. But there is another aspect of the matter. If A says what he heard from B not as proof the happening of the event, but as what was said by B regarding the event in his hearing, there is no objection to the statement. The reasons for the rule excluding the unsworn 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."9 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.

Atkia Begum v Mohammed, AIR 1916 PC 250 13 of 18 S3598-96.DOC

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-chief on affidavit required by CPC Order 18, Rule 4.

Where an evidence affidavit purports to contain such material, a court must endeavour to bring that affidavit into conformity with the provisions of the Order 18 and Order 19 of the CPC and of theEvidence Act. A non-conforming evidence affidavit is anathema to our system of law.

22. There is another reason for this approach. The Evidence Act restricts what evidence may be led as examination in chief. The provisions of CPC Order 18 Rule 4 are procedural. The Evidence Act is substantive law. Procedural law cannot expand the ambit and scope of or override substantive law. That could also never have been the legislative mandate of the 2002 amendments to Order 18 Rule 4 of the Code of Civil Procedure, 1908.

23. In the present case, a very large portion of the present affidavit is precisely of this impermissible nature. It is argumentative. It contain submissions. It contains traverses in the nature of pleadings of statements made in the written statement.

None of this can be permitted to find place in an affidavit in lieu of examination in chief. Mr. Nevatia will have the the widest latitude in arguments. There, pointing to the pleadings and evidence, both documentary and oral, he may invite the Court to draw such conclusions or arrive at such findings as are in his submission 14 of 18 S3598-96.DOC appropriate. But that does not mean that his evidence affidavit can be more than the law permits.

24. How should a court approach such a non-conforming affidavit, i.e., one that contains material that is clearly inadmissible or demonstrably irrelevant? A party may, in a given case, be permitted to replace his affidavit with one that conforms. It is not in every case that a party is required to attest to the correctness of the contents of that affidavit, as the Supreme Court has held. 10 But where an affidavit contains material that, even had the witness attested to it, could not have formed part of his 'testimony' properly so-called, it would plainly defeat the interest of expedition to prevent a party from substituting that affidavit with one that meets the rigour of CPC Order 18 Rule 4. Of course, this does not mean that a party should be continually permitted to 'test the waters' by filing one non-conforming affidavit after the other.

Replacing such an affidavit must, surely, 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 cross- examiner 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, Rasiklal Manikchand Dhariwal V Mss Food Products, (2012) 2 SCC 196 15 of 18 S3598-96.DOC 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 the record merely because CPC Order Rule 4 requires examination-in-chief to be on affidavit.

26. Mr. Nevatia agrees to substitute the additional affidavit of 10th March 2014 by one that is in conformity with the provisions of Order 18 and Order 19 of the CPC and the Evidence Act.

27. I will now consider Mr. Nevatia's affidavit in lieu of examination-in-chief dated 27th August 2010. This affidavit is in two parts. The first is, supposedly, his examination-in-chief as the defendant to the suit; and the second part is purportedly in support of his counter-claim. Ex-facie, a large part of this affidavit is argumentative and conjectural. Many portions of it are in the nature of inadmissible, hearsay evidence. Some portions of it purport to be oral testimony of documents already marked as exhibits.

28. It would have been advisable and probably in Mr. Nevatia's interest that even 2010 affidavit be replaced with one in conformity with law. However given the choice, he has elected to stay with his present affidavit. He does so at his peril; the cross-examination will not be curtailed on that account.

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29. Mr. Joshi for the plaintiff in the suit, and Dr. Saraf, learned advocate for defendant No.5 in the suit, will be at liberty to ignore and, without risk of adverse inference or other consequence, not be required to cross-examine Mr. Nevatia on the following portions of his affidavit dated 27th August 2010 in lieu of examination-in-chief:

(a) In relation to the suit: Paragraphs 7 (all assertions as to the plaintiff being a benamidar), 8, 9, 10, 12 (to the extent it contains submissions regarding specific enforcement or performance and legal effect or tenor of the Family Arrangement dated 27th November 1992), 13 (general portion, excepting sub-paras (a) to
(k)), 14, 30 (from the words "I say that the Plaintiff thus expressly or by necessary implication ..." to the words "... or in a manner inconsistent with Clause (3) of the said Writing of Family Arrangement datd 27.11.1992" at page 41), 30 (from the words "I say that the plaintiff's said alleged will or any other disposition, if any, which may be contrary ..." at page 42 to the end of the paragraph on page 43), 31 to 46, 47 (first sentence), and 48 to 59.
(b) In relation to the counter-claim: Paragraphs 1, 4, 5, 8, and 9 to 21.

30. Should there be any other portions which, according to Mr. Joshi or Dr. Saraf, should be similarly excluded, they will be at liberty to make their submissions on the matter at the relevant time. Mr. Nevatia will also be heard on such oral applications.

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31. By limiting the ambit of the evidence affidavit, I am not in any manner restricting Mr. Nevatia's arguments 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. Given Mr. Nevatia's quite formidable forensic skills, ones not to be underestimated, I have little doubt that he will do just that.

32. Mr. Nevatia shall, on or before 17th April 2014 file and serve on the advocates for the plaintiffs in the suit and the advocates for the 5th defendant, a fresh additional affidavit in lieu of examination in chief.

33. This order disposes of chamber summons (L) No. 477 of 2014.

34. List the suit for directions on 5th May 2014 at 3.00 p.m. (G. S. PATEL, J.) 18 of 18