I.A. Ansari, J.

1. By making this application under Article 226 of the Constitution of India, the plaintiff, as petitioner, has put to challenge the order, dated 8.7.2009, passed, in title suit No. 389/2006, by the learned Munsiff No. 1. Kamrup, Guwahati, whereby the learned trial court has not acceded to the plaintiff-petitioner's prayer that the evidence of DW1, given in the affidavit, which was filed on 12.12.2008, be rejected inasmuch as the affidavit repeats the contents of some of the paragraphs of the written statement, that such statements are purely statements of law and such statements of law do not disclose any facts, the statements are argumentative in nature and, at times, the statements are mere submissions made, and conclusion drawn, by the deponent (DW1).

2. The moot question, therefore, which falls for determination, in the present revision, is this: When a party files his evidence on affidavit and such affidavit contains statements of law or contains his submissions, which are nothing but arguments of fact or law, or when the affidavit contains such statements, which are conclusions drawn from various facts, or which are mere submissions, how such affidavit and the contents thereof shall be treated, in law, and whether such an affidavit can be refused to be accepted by the court or, otherwise, whether such an affidavit can be rejected?

3. Heard Mr. O.R Bhati, Learned Counsel for the plaintiff-petitioner, and Mr. S.P. Roy, Learned Counsel, for the defendant-opposite party.

4. In view of the fact that the impugned order, dated 8.7.2009, contains the essential facts, the contents of the order, dated 8.7.2009, are reproduced hereinbelow:

8.7.2009

Today is the date fixed for cross-examine of DW1 was expected to remain present in the court, but after hearing about the petition No. 6519/2009 filed by the plaintiff, the Counsel for the defendant sought the leave of the court to instruct the defendant not to attend the court.

Considering the nature of the petition it was felt that there is no possibility of cross-examination to take place today, hence the leave sought for was granted.

The plaintiff by the petition No. 6510/2009 prays for rejecting the affidavit of DW1, because it has not been drawn up in accordance with rule, 19 CPC and that it is a verbatim copy of the written-statement.

Heard the Counsel for the plaintiff. I may point out here that the affidavit of DW1 was filed on 22.12.2008, thereafter on 2.2.2009, the suit was posted for cross-examination of DW1, but the Counsel for the plaintiff prayed for adjournment, which was allowed on cause shown. Again on 10.6.2009, when the DW1 was present for his cross-examination, the Counsel for the plaintiff was out of station, thus, the hearing was adjourned with cost of Rs.300.

The petition filed today is thus extremely belated, this plea, if all, could have been taken. On the very date of acceptance of affidavit of DW1, since the plea taken the in the petition, if sustainable Was apparent on the affidavit itself. The petition deserve dismissal on the count alone, as because after taking adjournment for cross-examining of DW1, the plaintiff has come up with this petition.

If the affidavit is not in accordance with law, then the affidavit of the plaintiff shall also be subjected to the same law. On perusal of the affidavit of PW1, it is apparent, he too has referred to certain provisions of law in his affidavit, thus, the plaintiff shall let the court know if his affidavit is also to the rejected. If the plaintiff wants his affidavit to remain on record, this petition shall be deemed to have been rejected with cost which will be quantified after the plaintiff submits his statement on the query posed by the court.

Fixing 15.7.2009 for statement of plaintiff.

5. Since the learned trial court has not rejected the affidavit as had been sought for by the plaintiff-petitioner, the plaintiff-petitioner has, now, impugned the order, dated 8.7.1999, aforementioned, in the present pro