An Evidence Affidavit once filed cannot be withdrawn and becomes a part of the record. The court also discussed the consequences of unavailability of witnesses and the treatment of documents admitted in evidence based on an evidence affidavit.

1. In these two suits, both of considerable vintage, a question of law arises relating to affidavits in lieu of examination-in-chief filed under Order 18, Rule 4 of the Code of Civil Procedure, 1908 (“CPC”). In Suit No. 1488 of 1980 I have heard Mr. M.S. Doctor, learned Senior Counsel for the Plaintiff and Mr. S.H. Jagtiani for the Defendants, and in Chamber Summons No. 1678 of 2014 in Suit No. 1373 of 1992 I have heard Mr. G. Godbole and Mr. V.V. Kanade learned Counsel for the Plaintiff and the Defendant respectively. The submissions have not been on the merits of either of these two matters or, indeed, even on the contents of the Affidavits in lieu of Examination-in-Chief in either suit. The discussion has revolved around the question of the powers of a court when dealing with an Affidavit in lieu of Examination-in-Chief (“an Evidence Affidavit”) under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 (“the CPC”).

2. Shortly stated, the question arose in Suit No. 1488 of 1980 when Mr. Doctor tentatively proposed not to offer the Plaintiff as a witness though his Evidence Affidavit was already filed. The only reason, Mr. Doctor said, was that the Plaintiff was very old and could not possibly withstand the rigour of a cross-examination. He hoped — and he put it no higher than that — to be able to complete the trial on the basis of documents. When it was pointed out that the documents were marked on the basis of the Plaintiff’s Evidence Affidavit, and that not tendering a witness could not possibly be without consequence, Mr. Doctor sought instructions. Later, he made it clear that he was not pressing his application.

3. In somewhat different circumstances, Mr. Godbole in Chamber Summons No. 1678 of 2014 in Suit No. 1373 of 1992 sought leave to withdraw an Evidence Affidavit already filed. Here again, the same question arose: whether such a ‘withdrawal’ is ever permissible, and, if so, under what circumstances and with what consequences.

4. On 13th October 2014, I heard learned Counsel briefly on the nature of the questions that might arise in this connection.

Paragraphs 2 to 5 of the order passed that day read thus:

2. In all these matter a common question of law has arisen. It pertains to Order XVIII Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) and some of the issues that arise in relation to affidavits in lieu of examination-in-chief. Some of these questions and issues are: Is it permissible for a Court to order the deletion or redaction of any portion of any such affidavit if that part is found to be inadmissible as evidence? If so, at what stage of the proceedings should this be done? Can a party ‘withdraw’ an evidence affidavit without consequence? Can an evidence affidavit, once filed, ever be ‘returned’? What are the consequences if an affidavit is filed and then it is found, perhaps a long time later, that the deponent of that evidence affidavit is either unavailable or cannot be tendered for cross-examination? Where documents are admitted in evidence on the basis of an evidence affidavit and the witness is then not made available or tendered for cross-examination, how are those documents to be treated? These, and other allied questions, all arise with regularity in suits.

3. I have briefly heard Mr. Godbole, Mr. Doctor, Mr. Jagtiani, and Mr. Kanade for the parties in these two matters. The arguments are by no means concluded. Indeed, it seems that there are possibly other questions that require to be addressed. Mr. Godbole, for instance, points to two: in his case, Suit No.1373 of 1992, the witness filed an evidence affidavit some time ago. He is now seriously unwell and cannot possibly withstand a cross-examination, even one taken de bene esse. Had this witness been required to wait till his examination-in-chief was taken directly by oral testimony, there would have been no difficulty; for, had he been unable to depose at all, his examination-in-chief would never have been led by the Plaintiff in that