Unjustified objections to recording of evidence and delaying tactics by a party may disentitle them to certain rights in the trial.

JUDGMENT :

Vipin Sanghi, J.

Mr. Christian London, who is a French national is a witness for the plaintiff. He has come to India specially to depose in the matter. Vide order dated 8.1.2007 it was directed that the recording of evidence be carried out on a day to day basis to accommodate the foreign witness. The matter was fixed for cross-examination of the foreign witness on 16.1.2007 before the Joint Registrar.

2. When the matter came up before the Joint Registrar on 16.1.2007, even though the witness was present with the translator, the defendant's counsel raised various objections and did not cross-examine the said witness.

3. The Joint Registrar has placed the matter before the Court to deal with the various objections raised by the defendants, which have been elaborately recorded in the order dated 16.1.2007 passed by the Joint Registrar.

4. The defendant firstly objected by stating that there were two affidavits of the same witness, namely, Mr. Christian London, one filed on 3.12.2005 and the second on 2.2.2006. During the course of arguments, it was stated by learned Counsel for the plaintiff that the document that the defendant is claiming to be an affidavit of Mr. Christian London filed on 2.2.2006 is in fact not an affidavit.

5. A bare perusal of the said document shows that it is merely a certificate issued by Mr. Christian London. It does not even purport to have been made and signed on solemn affirmation. To this, learned Counsel for the defendant countered by relying upon the index wherein the document had-been described as an affidavit of Mr. Christian London. In my view, it is elementary that a statement, which is not made on solemn affirmation and does not even purport to be as made on solemn affirmation, cannot be treated as an affidavit. Mere description of the said document as an affidavit in the index does not make the said document an affidavit. This objection of the defendant is wholly frivolous and I reject the same.

6. The second objection raised by the defendant's counsel is that the affidavit filed on 3.12.2005 is in the nature of a replication to the written statement of the defendant. It is stated that despite repeated opportunities and imposition of costs replication was not filed by the plaintiff and right to file replication was closed by the Court vide, order dated 24.10.2003. Learned Counsel for the defendant submitted that the plaintiff could not file its replication in the garb of an affidavit by way of evidence.

7. In my view this objection merely needs to be stated to be rejected. The affidavit has been filed by the witness as his examination-in-chief. It is for the witness to state, whatever he may choose to state and depose in his affidavit by way of examination-in-chief. It is not for the defendant to raise an objection that the affidavit is in fact a replication. It is not for the defendant to advice as to what the plaintiffs witness should state in his examination-in-chief. The defendant cannot obstruct the trial by such means. It is for the defendant to cross-examine the witness and if the deponent has in his affidavit deposed beyond pleadings the defendant can certainly confront the witness with regard to that part of the deposition which is beyond the pleadings of the plaintiff. It would be for the Court, ultimately at the time of hearing of the suit to rule upon such objections and to decide whether or not to disregard any part of the deposition of the witness. However, that by itself cannot be a ground for the defendant to object to the recording of evidence and for refusal to proceed with the cross-examination of the witness. This objection of the defendant is, Therefore, rejected.

8. The next objection raised by the defendant was that documents at Sl. Nos. 2,3,6,7,8,9 and 10 in the index dated 3.12.2005 were new documents, copies whereof had not been placed on record earlier, nor any permission had been sought to file the originals of these documents from the Court. Learned Counsel for