The defect in an affidavit may be considered curative, and the court has the discretion to evaluate objections and discharge material beyond pleadings at the appropriate time.

Mahesh Grover, J. - C.M.No.8078-CII of 2010

Allowed as prayed for

C.R.No.2100 of 2010

This revision petition is directed against order dated 25.2.2010 passed by the District Judge, Family Court, Gurgaon (hereinafter described as `the trial Court') vide which the application of the petitioner filed under Order 19 Rule 3 read with Section 151 of the C.P.C. has been rejected. During the course of matrimonial proceedings, while recording evidence, the respondent is said to have furnished an affidavit as a measure of his testimony which has given rise to the grievance to the petitioner, who has stated that the contents of the affidavit by way of evidence cannot be looked into as they are beyond pleadings and, therefore, such paragraphs need to be expunged. The second grievance that has been made by the petitioner is that the affidavit deserves to be rejected because of defective verification.

2. The trial Court, by virtue of the impugned order, negatived the plea of the petitioner and particularly, stated that the impact of such objections shall be assessed at the time of evaluation of the evidence.

3. The petitioner, by way of this petition, assails the impugned order and the reasoning contained therein.

4. It has been contended by the learned counsel for the petitioner that the affidavit which has been filed with defective verification, is not an affidavit in the eyes of law and, therefore, deserves to be rejected. She has further contended that it is a settled principle of law that any material which is beyond pleadings, cannot be looked into. She, thus, submitted that the application of the petitioner has been wrongly declined and it was the duty of the trial Court to expunge the material which was contrary to the pleadings and she was not to be subjected to rigors of protracted cross-examination of the respondent on the issues which deserve outright rejection. It has been argued that in view of the settled proposition of law that an affidavit with defective verification is no affidavit in the eyes of law, the trial Court ought to have accepted the application of the petitioner.

5. In support of her contentions/submissions/arguments, learned counsel for the petitioner placed reliance on the following judgments:-

1. A.K.K. Nambiar Versus Union of India and another, AIR 1970 S.C. 652;

2. Ram Sarup Gupta (dead) by L.Rs. Versus Bishun Narain Inter College and others, AIR 1987 S.C. 1242;

3. Maqboolunnisa Versus Molhd. Saleha Quaraishi, (1998) 9 S.C.C. 585;

4. Ameer Trading Corporation Ltd. Versus Shapoorji Data Processing Ltd., 2004(1) S.C.C. 702;

5. D.N.Gupta Versus Jaswant Singh, 21 (1982) Delhi Law Times 8 (Delhi);

6. Sunder Industries Vesus General Engineering Works, 21 (1982) Delhi Law Times 53 (SN) (Delhi);

7. Mrs. Sapna Singh Pathania & Anr. Versus Jagdish Chander Mehta & Ors., 75 (1998) Delhi Law Times 725 (Delhi);

8. Smt.Vimla Mehra Versus Shri K.S.Mehra, 158 (2009) Delhi Law Times 136 (Delhi);

9. Haren Krishnakumar Mehta Verksus Kamla Pribhdas Nebhanani, AIR 2001 Bombay 187;

10. Para Biswal Versus Janjali Khan, AIR 2005 Orissa 7;

11. Ravinder Pal Mohindra Versus Gurbachan Singh and others, 2006(3) R.C.R. (Civil) 708 (P&H);

12. T.K.Gangan Menon Verksus M/S Bright Credit and Real Estate (P) Ltd. and others, 2009(5) R.C.R. (Civil) 467 (Kerala).

6. I have thoughtfully considered the aforementioned contentions of the learned counsel for the petitioner and have gone through the file. The foremost question that is to be considered is as to whether the affidavit which has been filed with defective verifications can be treated to be an affidavit in the eyes of law. The objection of the petitioner is that the verification is vague as certain paras have been affirmed to be true to the knowledge and belief.

7. There is no quarrel with the proposition of law as has been laid down in the judgments relied upon by the learned counsel for the petitioner on the point of verification of an affidavit as this matter is no longer res int