Affidavits filed as evidence should adhere to the provisions of law, be limited to factual situations, and not contain argumentative or philosophical content.

Deepak Gupta, J.(Oral). By means of this petition, the petitioner has challenged the order dated 22.2.2011 passed by the learned Civil Judge (Sr. Division), Bilaspur, District Bilaspur, HP rejecting the application filed by the petitioner (hereinafter referred to as defendant No.1) praying that the affidavit filed by respondent No.1 (hereinafter referred to as the plaintiff) be ordered to be struck off and she be directed to file a fresh affidavit.

2. According to the plaintiff, she is the legally wedded wife of defendant No.1 and out of this wedlock three children were born. According to her, defendant No.1 has illegally “kept defendant No.2 as his wife/concubine” and one child has been born out of this wedlock. The case of the petitioner-defendant is that the plaintiff is not his wife and defendant No.2 is his legally wife. This is the short dispute between the parties, but like in all matters of this nature, ego takes prominence and things which are not within the realm of law are alleged against each other.

3. In terms of Order 19 of CPC, the plaintiff was directed to file her affidavit in evidence. Order 19(1) reads as follows:-“Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit”

4. The plaintiff filed an affidavit which has been annexed herewith as Annexure P-3. I have perused the affidavit and find that the affidavit is a mixture of facts, hearsay, argumentative and also philosophical. When an affidavit has to be filed in terms of Order 19 of CPC, which has to be read in evidence, a party is entitled to lead evidence only on the issues and the affidavit filed by way of evidence cannot take the place of written arguments. The affidavit must be limited to the factual situation and should not be argumentative or philosophical. I am constrained to observe that the learned trial Court was absolutely wrong in holding that the opposite party cannot direct what sort of affidavit should be filed by a witness. In my considered opinion, it is the role of the Court to ensure that every affidavit is filed in consonance with the provisions of law, and if it is brought to the notice of the Court that the affidavit goes beyond the issues, then the said affidavit can be struck off.

5. The learned trial Court also did not take into consideration the provision of Order 19 Rule 3 which read as follows:-

“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.”

6. Sub Rule 2 of Rule 3 clearly lays down that the affidavit should not contain unnecessary hearsay averments, nor should it be argumentative in nature. When Order 19 was introduced by the Code of Civil Procedure (Amendment Act), the purpose behind enacting this provision was that time of the Court should not be wasted in recording evidence. Experience of 10 years has shown that this experiment has miserably failed. It is common knowledge that because Courts are lenient, affidavits are filed wherein the entire plaint is reproduced and sometimes like in the present case, even arguments and philosophy are included in the affidavit. This is