This petition is by the defendant in Commercial

O.S.No.125/2022 on the file of the X Additional District and

Sessions Judge, (Dedicated Commercial Court), Bengaluru

Rural District, Bengaluru (for short, 'the commercial Court').

The petitioner has impugned the commercial Court's order

dated 14.11.2022, and the commercial Court by this order

has rejected the petitioner's application (I.A.No.IV) under

Order XV-A Rule 6 read with Section 151 of the Code of Civil

Procedure, 1908 as applicable to the commercial Court for

striking

out

the

affidavit

of

examination-in-chief

of

respondent's witness - PW.1.

The

commercial

Court

has

rejected

the

petitioner's application for the reasons which reads as

under:

I have carefully gone through the averments of

the plaint and the contents of the affidavit filed by

PW.1. The affidavit evidence is not the reproduction of

the plaint. PW.1 has merely reproduced the facts

pleaded in his plaint which cannot be termed as

reproduction of plaint. PW.1 has not stated in his

affidavit regarding legal pleas. He has stated the

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events in chronological manner and each paragraph is

confined to distinct portion of the subject. I am of the

opinion that the affidavit filed by PW.1 is in

consonance with the provisions of Order XIX Rule 6 of

Code of Civil Procedure. There were no sufficient

grounds for

the

defendant

to file

the present

application. It appears that the application is filed only

to protract the matter.

The commercial Court has also opined that if there is some

repetition or reproduction of the plaint averments in the

affidavit filed in lieu of chief examination, such affidavit

cannot be struck out because of the salient that the parties

must necessarily confine evidence to the pleadings.

The respondents' suit is for declaration that the

subject joint development agreement and contemporaneous

power of attorney executed in favour of the petitioner for

development of the subject property are cancelled. The

petitioner

has

denied

the

allegations

of

failure

of

performance contending specifically that the amount in

excess of Rs.3 Crores is invested for development. In the

light of these pleadings, the commercial Court has framed

Issues which require the respondents to show that the

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petitioner has failed to develop the subject property and the

other Issues are on the petitioner viz., to show investment

and the delay in development because of lack of access to

the subject property and pendency of litigation.

Sri. Sushal Tiwari, the learned counsel for the

petitioner, submits that the respondents without regard to

the Issues that are framed, and which brings into focus the

questions for decision, have caused an affidavit by their

witness which is a mere cut and paste of the plaint.

Sri. Sushal Tiwari submits that when it is shown that

affidavit-in-chief is a mere cut and paste, the Courts

concerned especially, the commercial Courts must intervene

for the following two [2] reasons:

• This Court has frowned upon the practice of filing

affidavit as a mere replica of the plaint without

reading the records¹.

• The provisions of Order 15-A Rule 6(g) of the Code

of Civil Procedure, 1908 as applicable on the

1 The reliance is on S.Prasanna Kumar Vs. R.Saraswathi reported in

ILR 2009 KAR 878 and the decision of the Delhi High Court in Brij

Prakash Gupta Vs. Ashwini Kumar in CM(M) 650/2019 & CM

APPL.19603/2019 which is decided on 06.02.2020

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commercial Court, the concerned commercial

Courts must strike out an affidavit, or such part of

the affidavit, as it deems proper if the affidavit is a

mere reproduction of the pleadings or contains

legal grounds.

These legal submissions are incontrovertible, and the merits

of the Commercial Court9s order must be considered in the

backdrop of these propositions.

On a juxtaposed reading of the plaint and the

evidence, it is obvious that the affidavit-in-chief of the

witness is filed without due regard to the contentions in the

written sta