HARISH LOYALKA Vs. DILEEP NEVATIA

JUDGEMENT

(1.) The 1st defendant to the suit and the plaintiff to the counterclaim, Mr. Nevatia, has filed a further affidavit dated 10th March 2014 in lieu of examination in chief. Substantial portions of this affidavit, notably from the fourth line of paragraph 12 to the end of that paragraph, and from paragraph 14 onwards are in the nature of submissions, arguments and not in the nature of evidence. Mr. Joshi, learned senior counsel for the plaintiffs to the suit is justified in his contention that he ought not to be required to cross-examine Mr. Nevatia on these submissions as they are not testimony.

(2.) The provisions of Order 18 Rule 4 of the Code of Civil Procedure, 1908 ("CPC")require that the "examination in chief" shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contain arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4.

(3.) Can a court order the deltion of portions of an evidence affidavit Can it direct that portions of that affidavit are, either on the grounds of relevancy or admissibility or both, liable to be expunged from the record or excluded from consideration or, at any rate, ignored without fear of consequence in cross-examination Mr. Nevatia would have it, on the strength of considerable precedent, that a court cannot, and that it has no such power. His submission is that an evidence affidavit, regardless of what it contains, is inviolate. It may contain hearsay material. It may contain all manner of irrelevant material, directed neither to facts in issue nor to relevant facts. It may also contain inadmissible matter, such as statements in the nature of submissions, arguments and traverses of pleadings. All this, Mr. Nevatia says, is his 'evidence', and must be left untouched.