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IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
BRIJ PRAKSH GUPTA - Appellant
Vs.
ASHWINI KUMAR - Respondent
CM(M) No. 650 of 2019 & CM APPL. 19603/2019
Decided On : 06-02-2020
Order XVIII Rule 4 CPC and Order XIX Rule 3 CPC govern the filing of examination-in-chief by way of an affidavit in evidence. The purpose of introducing the provision for examination-in-chief by way of affidavit was to expedite the recording of evidence and to ensure that judicial time could be utilized more pragmatically. The affidavit in evidence should contain facts within the deponent's personal knowledge and cannot contain irrelevant statements or facts beyond the pleadings. Objections to the affidavit can be raised and decided at the final stage of the proceedings. The Trial Court has the power to discard irrelevant portions of the affidavit while deciding the suit. The Court should consider objections to the affidavit at the time of final adjudication and not before cross-examination starts.
Fact of the Case:
The present petition challenges the order directing the Plaintiff to file a fresh affidavit by way of evidence. The Plaintiff argues that the expunged paragraphs in the earlier affidavit only elaborate on or give factual foundation for the pleadings already contained in the plaint. The Defendant argues that some of the facts sought to be introduced in the affidavit have no basis in the pleadings. The Court examines the legal position governing the filing of examination-in-chief by way of an affidavit and the provisions of Order XVIII Rule 4 CPC and Order XIX Rule 3 CPC. The Court refers to the Supreme Court's decision in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. and other judgments to conclude that objections to the affidavit can be raised and decided at the final stage, and cross-examination can proceed subject to the objections. The Court also emphasizes that the affidavit in evidence should contain facts within the deponent's personal knowledge and cannot contain irrelevant statements or facts beyond the pleadings. The Court finds that most of the objectionable portions of the affidavit in this case are either expanding on or giving further factual basis for what has already been pleaded in the plaint. The Court directs that the objections shall be recorded and considered at the time of final adjudication. The Court also directs the Trial Court to dispose of the suit within one year.
Finding of the Court:
The Court examines the legal position governing the filing of examination-in-chief by way of an affidavit and the provisions of Order XVIII Rule 4 CPC and Order XIX Rule 3 CPC. The Court refers to the Supreme Court's decision in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. and other judgments to conclude that objections to the affidavit can be raised and decided at the final stage, and cross-examination can proceed subject to the objections. The Court also emphasizes that the affidavit in evidence should contain facts within the deponent's personal knowledge and cannot contain irrelevant statements or facts beyond the pleadings. The Court finds that most of the objectionable portions of the affidavit in this case are either expanding on or giving further factual basis for what has already been pleaded in the plaint. The Court directs that the objections shall be recorded and considered at the time of final adjudication. The Court also directs the Trial Court to dispose of the suit within one year.
Ratio Decidendi: Objections to an affidavit in evidence can be raised and decided at the final stage of the proceedings. The affidavit should contain facts within the deponent's personal knowledge and cannot contain irrelevant statements or facts beyond the pleadings. Cross-examination can proceed subject to the objections raised. The Trial Court has the power to discard irrelevant portions of the affidavit while deciding the suit. The Court should consider objections to the affidavit at the time of final adjudication and not before cross-examination starts.
Result: The modifications directed by the Trial Court to the affidavit-in-evidence are not found appropriate. The affidavit-in-evidence shall be read as it is. The objections of the Defendant shall be recorded prior to or during cross-examination and considered at the time of final adjudication. The objections as to mode of proof, admissibility, etc., if raised, would also be liable to be adjudicated at the final stage. The Trial Court is directed to dispose of the suit within one year.
JUDGMENT
Prathiba M. Singh, J.
The present petition challenges the impugned order dated 23rd February, 2019, by which the ld. Sr. Civil Judge has directed the Plaintiff/Petitioner (hereinafter, "Plaintiff") to file a fresh affidavit by way of evidence. Some parts of the earlier affidavit were expunged by the Trial Court on the ground that the same were not reflected in the pleadings.
2. The submission of Mr. R.S. Kela, ld. counsel for the Plaintiff, is that the paragraphs which have been expunged are, in fact, only elaborating on or giving the factual foundation for the pleadings already contained in the plaint. Ld. counsel submits that nothing alien to the plaint has been stated in the affidavit.
3. On the other hand, ld. counsel for the Respondent/Defendant (hereinafter, "Defendant"), after taking the Court through various portions of the affidavit-in-evidence, which, according to him, go beyond the plaint, submits that some of the facts sought to be introduced in the affidavit have no basis in the pleadings. Hence, he submits that the Trial Court's order deserves to be affirmed.
4. This Court has perused the impugned order and heard the submissions of the parties. The trial court record was also summoned by this Court. The suit is one for recovery of possession, mesne profits and occupation charges, filed by the Plaintiff i.e., Mr. Brij Prakash Gupta against the Defendant i.e., Mr. Ashwini Kumar. The case of the Plaintiff in the plaint is that the Defendant's father - Mr. J.C. Bahree was a tenant in the suit property bearing No. 812, Joshi Road, Karol Bagh, New Delhi (hereinafter, "suit property"). Details of the relationship of landlord and tenant have been stated in paragraph 3. The manner in which the notice of termination of tenancy was issued and the factum of the termination of the said notice having not been withdrawn is contained in paragraphs 3 to 5. Thereafter, details have been given of how Ms. Satya Wati Bahree, i.e., the Defendant's mother, had a limited inheritance in the suit property. Further, the manner in which notice was served upon the Defendant and acknowledged by him, as also the reply thereof has been mentioned in paragraphs 11 and 12 of the plaint. The quantum of mesne profits claimed and the relief are also contained in the plaint.
5. The legal position governing the filing of examination-in-chief by way of an affidavit is well settled. It is by way of the amendments introduced in the Code of Civil Procedure, 1908 (hereinafter, "CPC") in 2002 that filing of the examination-in-chief by way of an affidavit was introduced. Prior to that, examination-in-chief was oral, followed by cross-examination and re-examination, if permitted. The purpose of introducing the provision for examination-in-chief by way of affidavit was to expedite the recording of evidence and to ensure that judicial time could be utilized more pragmatically.
6. The two provisions governing the contents of affidavits in evidence are Order XVIII Rule 4 CPC read with Order XIX Rule 3 CPC. The said provisions are set out below:
"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 of admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
ORDER XIX
Affidavits
3. Matters to which affidavits shall be confined. - (1) Affidavits shall be confined to such facts as the deponent is able of 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, sh
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