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HIGH COURT OF DELHI : NEW DELHI

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CS (OS) No. 894/2001

Judgment reserved on: 17-01-2007

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Judgment delivered on: 18-01-2007

La Chemise Lacoste & another

.....

Petitioners

Through:

Mr. C. M. Lall with Ms. Shikha

Sachdev & Mr. Manish Dhir,

Advocates

versus

Crocodile Indl. Pte. Ltd.

..... Respondents

Through:

Mr. Sandeep Kakra, Advocate

CORAM

HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may

be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported

in the Digest?

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

CS (OS) No. 894/2001

Page No. 1 of 18

2007:DHC:19

foreign witness on 16.1.2007 before the Joint Registrar.

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.

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.

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.

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

CS (OS) No. 894/2001

Page No. 2 of 18

2007:DHC:19

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.

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.

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 t