Point of Law: While Order XIX Rule 3 of the CPC does set out the contents of affidavits to be filed in civil proceedings, it does not permit striking off an affidavit from the record merely because it is not in terms of Order XIX Rule 3.

JUDGMENT :

1. This petition under Article 227 of the Constitution assails an order dated 13th May, 2022, passed by the learned Additional District Judge (the learned ADJ) in CS DJ 438/17 (Stellar Information Technology Pvt. Ltd. v. Chandan Kumar Chaudhary).

2. Learned Counsel for the petitioner urged three grounds of challenge to the impugned order. The first was to the rejection, by the learned ADJ, of the petitioner’s request that the affidavit filed by DW-1 be not exhibited, as it was argumentative in nature. The second is against the disallowance, by the learned ADJ, of certain questions which the petitioner desired to put to DW-1. The third is against the warning administered in the impugned order dated 13th May, 2022, to learned Counsel for the petitioner, for having made an incorrect statement regarding collection of certified copies.

3. Insofar as the third ground of challenge is concerned, learned Counsel for the petitioner has pointed out that the application for certified copies were presented in time. As such, this Court expunges the warning, contained in the impugned order dated 13th May, 2022, to learned Counsel for the petitioner (the plaintiff in the suit).

4. Apropos the other two grounds of challenge, I queried, of learned Counsel for the petitioner, as to the provision under which a party in a proceeding could resist exhibition of an affidavit on the ground that it was argumentative in nature. He has invited my attention to Order XIX Rule 3 of the CPC which reads thus:

“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, shall (unless the Court otherwise directs) be paid by the party filing the same.”

5. To my mind, while Order XIX Rule 3 of the CPC does set out the contents of affidavits to be filed in civil proceedings, it does not permit striking off an affidavit from the record merely because it is not in terms of Order XIX Rule 3. Nonetheless, if the affidavit is not in compliance with Order XIX Rule 3, and, for that reason, the assertions and averments in the affidavit stand compromised in any manner, the defence of the petitioner, on that score, would remain open to be urged at the appropriate stage before the learned ADJ.

6. This Court is not expressing any opinion on the contents of the affidavit and it is reiterated that are objections of the petitioner in that regard would remain open and, if urged, would be considered on its own merits by the learned ADJ.

7. Apropos the second ground of challenge, relating to the disallowance, by the learned ADJ, of certain questions that the petitioner sought to put to DW-1, I expressed my opinion, to learned Counsel for the petitioner, that the issue of whether a particular question should be allowed or disallowed, is essentially one of discretion of the court recording the evidence, and Article 227 of the Constitution does not empower this Court to monitor recording of evidence by the court below. Learned Counsel for the petitioner prays, in response, that his objections to the disallowance, by the learned ADJ, of questions which, according to him, could validly be put to the witness, should remain open to be urged by him at the appropriate stage.

8. Reserving liberty as prayed, this petition stands disposed of in the aforesaid terms.

9. Copy of this order be given dasti to learned Counsel for the petitioner under signatures of the Court Master.