1. 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.

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 deletion 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.

4. Mr. Nevatia first relies on the decision of the Supreme Court in AmeerTrading Corporation Ltd v Shapoorji Data Processing Ltd. (AIR 2004 SC 355 : (2004) 1 SCC 702).In particular, he emphasizes paragraph 32 of that decision: (Of the AIR report; paragraph 33 of the SCC).

“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 (AS Oka, J), in HarakchandGulabchand 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 being attempted to be led in excess of the pleadings; both therefore dealt with issues of relevancy, not admissibility. In AmeerTrading, 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. This was rejected