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2009 DIGILAW 597 (GAU)

Pramod Kumar Sharma v. Biswanath Santosh Kumar

2009-08-21

I.A.ANSARI

body2009
ORDER I.A. Ansari, J. 1. By making this application under Article 226 of the Constitution of India, the plaintiff, as petitioner, has put to challenge the order, dated 8.7.2009, passed, in title suit No. 389/2006, by the learned Munsiff No. 1. Kamrup, Guwahati, whereby the learned trial court has not acceded to the plaintiff-petitioner's prayer that the evidence of DW1, given in the affidavit, which was filed on 12.12.2008, be rejected inasmuch as the affidavit repeats the contents of some of the paragraphs of the written statement, that such statements are purely statements of law and such statements of law do not disclose any facts, the statements are argumentative in nature and, at times, the statements are mere submissions made, and conclusion drawn, by the deponent (DW1). 2. The moot question, therefore, which falls for determination, in the present revision, is this: When a party files his evidence on affidavit and such affidavit contains statements of law or contains his submissions, which are nothing but arguments of fact or law, or when the affidavit contains such statements, which are conclusions drawn from various facts, or which are mere submissions, how such affidavit and the contents thereof shall be treated, in law, and whether such an affidavit can be refused to be accepted by the court or, otherwise, whether such an affidavit can be rejected? 3. Heard Mr. O.R Bhati, Learned Counsel for the plaintiff-petitioner, and Mr. S.P. Roy, Learned Counsel, for the defendant-opposite party. 4. In view of the fact that the impugned order, dated 8.7.2009, contains the essential facts, the contents of the order, dated 8.7.2009, are reproduced hereinbelow: 8.7.2009 Today is the date fixed for cross-examine of DW1 was expected to remain present in the court, but after hearing about the petition No. 6519/2009 filed by the plaintiff, the Counsel for the defendant sought the leave of the court to instruct the defendant not to attend the court. Considering the nature of the petition it was felt that there is no possibility of cross-examination to take place today, hence the leave sought for was granted. The plaintiff by the petition No. 6510/2009 prays for rejecting the affidavit of DW1, because it has not been drawn up in accordance with rule, 19 CPC and that it is a verbatim copy of the written-statement. Heard the Counsel for the plaintiff. The plaintiff by the petition No. 6510/2009 prays for rejecting the affidavit of DW1, because it has not been drawn up in accordance with rule, 19 CPC and that it is a verbatim copy of the written-statement. Heard the Counsel for the plaintiff. I may point out here that the affidavit of DW1 was filed on 22.12.2008, thereafter on 2.2.2009, the suit was posted for cross-examination of DW1, but the Counsel for the plaintiff prayed for adjournment, which was allowed on cause shown. Again on 10.6.2009, when the DW1 was present for his cross-examination, the Counsel for the plaintiff was out of station, thus, the hearing was adjourned with cost of Rs.300. The petition filed today is thus extremely belated, this plea, if all, could have been taken. On the very date of acceptance of affidavit of DW1, since the plea taken the in the petition, if sustainable Was apparent on the affidavit itself. The petition deserve dismissal on the count alone, as because after taking adjournment for cross-examining of DW1, the plaintiff has come up with this petition. If the affidavit is not in accordance with law, then the affidavit of the plaintiff shall also be subjected to the same law. On perusal of the affidavit of PW1, it is apparent, he too has referred to certain provisions of law in his affidavit, thus, the plaintiff shall let the court know if his affidavit is also to the rejected. If the plaintiff wants his affidavit to remain on record, this petition shall be deemed to have been rejected with cost which will be quantified after the plaintiff submits his statement on the query posed by the court. Fixing 15.7.2009 for statement of plaintiff. 5. Since the learned trial court has not rejected the affidavit as had been sought for by the plaintiff-petitioner, the plaintiff-petitioner has, now, impugned the order, dated 8.7.1999, aforementioned, in the present proceeding initiated under Article 227 of the Constitution of India. 6. In order to clearly understand as to what is the basis of the plaintiff's grievances, it is appropriate that some of the statements of law, contained in the written statement and repeated in the said affidavit, be taken note of. The affidavit, in question, states, inter alia, as under: 2. I state that the suit is not maintainable in its present form. 3. The affidavit, in question, states, inter alia, as under: 2. I state that the suit is not maintainable in its present form. 3. I state that there is no cause of action for the suit. 4. I state that the suit is undervalued and no ad valorem court fee has been paid. 5. I state that there is no proper verification of the plaint and the affidavit which are most vague one, which are inadmissible in law, as because statements made in paras 1, 2, 3, and 4 are the matters of record but the plaintiff had verified the same as true to his knowledge both in the verification and the affidavit as such the plaint is liable to be rejected. 7. Drawing attention of this Court to the above averments made in the affidavit, Mr. Bhati submits that these statements are inadmissible in evidence and the affidavit, containing such averments, ought to have been rejected by the court inasmuch as an affidavit can contain, according to Mr. Bhati, nothing other than the facts, which are required to be proved by a party in order to succeed in a suit. While Mr. Roy does not dispute the fact that the evidence, given on affidavit, must remain confined to the statements of fact, which are required to be proved, he points out that this application, under Article 227, is pre-matured inasmuch as the learned trial court has not taken any final decision on the plaintiff-petitioner's petition that the affidavit, in question, be rejected and without a final order having been passed, in this regard, by the learned court below, this application, under Article 227, is not maintainable. 8. Though this Court finds considerable force in the above submissions made by Mr. Roy, considering, however, the importance of the issue, this Court is of the view that it is appropriate that when this Court is in seisin of an issue, which has, quite often, created controversy, it is clarified as to whether evidence, filed on affidavit, can be rejected if it contains statement of law or contains statements, which are argumentative in nature or contains statements, which are nothing, but hearsay. 9. It needs to be noted that it is Order XIX of the Code of civil procedure ('the Code'), which provides for giving of evidence by way of affidavit. 9. It needs to be noted that it is Order XIX of the Code of civil procedure ('the Code'), which provides for giving of evidence by way of affidavit. Order XIX existed in the Code of civil procedure even before the Code of civil procedure (Amendment) Act, 2002, came into force, with effect from 1.7.2002. Order XIX reads as under: ORDER XIX 1. Power to order any point to be proved by affidavit.- Any court may at any time for sufficient reason 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 authorising the evidence of such witness to be given by affidavit. 2. Power to order attendance of deponent for cross-examination.- (1) Upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the court otherwise directs. 3. 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 filling the same. 10. From a careful reading of the provisions contained in Order XIX Rule 1, it becomes clear that a court may, at any time, for sufficient reason, 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. 11. From a careful reading of the provisions contained in Order XIX Rule 1, it becomes clear that a court may, at any time, for sufficient reason, 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. 11. What is, however, more important, for the purpose of the revision, are Sub-rules (1) and (2) of Rule 3, which lay down, inter alia, thus: (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 filling the same. 12. From a cautious reading of what Order XIX, Rule 3 embodies, it becomes clear that an affidavit, whereby evidence is given by a party, must remain confined to such facts as the deponent is able, of his own knowledge, to prove except when such affidavit is given in support of an interlocutory application, for, in an interlocutory application, the affidavit may not only contain the facts, which the deponent is able, of his own knowledge, to prove, but also the statements of his belief. Consequently, such statement of belief, which is, otherwise, not provable byway of evidence filed in affidavit, can still be accepted to support an interlocutory application. 13. However, when evidence is given on affidavit in a suit and not in an interlocutory application, such affidavit must contain only such facts, which the deponent, of his own knowledge, is able to prove. When evidence, given on affidavit, contains statements of law or contains statements of such facts, which are hearsay, or contains such statements, which are argumentative in nature, all such statements shall be treated as inadmissible in law and cannot be read into evidence at all. When evidence, given on affidavit, contains statements of law or contains statements of such facts, which are hearsay, or contains such statements, which are argumentative in nature, all such statements shall be treated as inadmissible in law and cannot be read into evidence at all. If instead of producing a witness, when his evidence is given on affidavit in a suit and if any statement contained therein or a part of such a statement contains statement of law or contains statement, which is argumentative in nature or contains statement of such facts, which are hearsay, then, all such statements or components thereof, embodied in such an affidavit, must be treated as inadmissible pieces of evidence and shall be kept excluded from the purview of the court's consideration, while considering the evidence given by the deponent. Consequently, when an affidavit contains a statement, which is a mere statement of law or contains statement, which is argumentative in nature, such a statement would be treated as inadmissible pieces of evidence inasmuch as such a statement of law is not a statement of fact. The effect, therefore, is that the affidavit, which is so filed, is not really rejected. The appropriate course would be that the statement(s), which such affidavit contains and which are not admissible in law as evidence, will not be treated as admissible pieces of evidence and will be kept excluded by the court from the purview of its consideration, while determining the correctness or veracity of an issue, which may arise for determination in a given suit. 14. Bearing in mind what has been indicated above, when I turn to the facts of the present case, there can be no doubt that the affidavit, which DW1 has filed, contains many statements, which are either statements of law or statements, which are in the form of submissions. Such statements are inadmissible in evidence and must be treated as inadmissible. This does not, however, mean, I must hasten to add, that the affidavit can be rejected as a whole; rather, whatever statements have been made, in the affidavit, which relate to a fact and provable by the deponent, of his own knowledge, would remain admissible in evidence and shall be taken into account, while appreciating the evidence adduced by the parties. 15. The impugned order, correctly pointed out by Mr. 15. The impugned order, correctly pointed out by Mr. Roy, has not, however, decided the question, which has been raised by the plaintiff-petitioner. In such circumstances, the learned trial court is hereby directed to consider the objection, raised by the plaintiff-petitioner, in the light of the law as has been discussed above. 16. With the above observations and directions, this revision shall stand disposed of. 17. No order as to costs.