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2009 DIGILAW 896 (PNJ)

Ashish Nayyar v. Mrs. Shelly Nayyar

2009-05-08

RAJESH BINDAL

body2009
Judgment Rajesh Bindal, J. 1. The petitioner has approached this Court challenging the order dated 9.1.2009, passed by the learned court below, whereby the application filed by him for deleting certain parts of the affidavit filed by the respondent in her evidence as examination - in - chief or for directing her to file a fresh affidavit, was dismissed. 2. Briefly, the facts are that the petitioner filed a petition under Section 13(i)(ia) and 13(i)(ii) of the Hindu Marriage Act, 1955 for dissolution of marriage, in which the petitioner led his evidence. In response to the evidence led by the petitioner, the respondent filed her affidavit for her examination-in-chief. It is some of the contents of the affidavit filed by the respondent in her examination-inchief, which were objected to by the petitioner by filing the application, which was dismissed. 3. Learned counsel for the petitioner submitted that the affidavit in evidence filed by the respondent by way of her examination-in-chief runs into 73 pages, which contains fictitious and frivolous allegations. The same has been made lengthy just with a view to confuse the petitioner as well as the court, as the respondent cannot be permitted to travel beyond pleadings or level allegations against any of the witnesses produced by the petitioner in his evidence or assail the quality of evidence led by him. The allegations so made against the witnesses produced by the petitioner and the facts stated in the affidavit, which are beyond pleadings, deserve to be struck off at this stage only or the respondent be directed to file a fresh affidavit deleting all those contents. Reliance was placed upon judgment of Kerala High Court in T.K. Gangan Menon v. M/s Bright Credit & [2] Real Estate (P) Ltd. And others (Kerala), 2008(1) RCR 91. 4. On the other hand, learned counsel for the respondent submitted that even the affidavit filed by the petitioner was quite lengthy as it contained number of allegations against the respondent and she had merely countered the facts stated by the petitioner in his affidavit in evidence in detail. In addition to that, certain facts, which she wanted to narrate, were stated. The same cannot be said to be beyond pleadings as primarily the divorce was sought by the petitioner on the grounds of cruelty and conversion of religion by the respondent. In addition to that, certain facts, which she wanted to narrate, were stated. The same cannot be said to be beyond pleadings as primarily the divorce was sought by the petitioner on the grounds of cruelty and conversion of religion by the respondent. As the pleadings of the petitioner himself were quite lengthy, the respondent had to reply the same back in some detail. Whatever she had stated in her affidavit, the contents thereof can be put to her in her cross- examination and the petitioner is always at liberty to demolish the same. Even if according to the petitioner, some of the facts stated in the affidavit of evidence go beyond pleadings, the evidentiary value thereof will be considered by the court at the time of final decision of the case in accordance with law. Reliance was placed upon Cesar Rego Fernandes & others v. Angela Ninette Oliveira Fernandes & others, 2008(2) Civil Court Cases 463 (Bombay). 5. Heard learned counsel for the parties and perused the paper book. 6. The only legal issue under consideration before this Court is as to whether at the stage for filing of affidavit in examination-in-chief, a party or a witness produced by him/her can be asked to delete certain parts of that affidavit or can a direction be issued to file a fresh affidavit because some of the facts stated therein, in the opinion of the other party, are either beyond pleadings or are argumentative or contains some allegations against the witnesses produced by other party. 7. On the issue, learned counsel for the petitioner had relied upon the judgment of Kerala High Court in T. K. Gangan Menons case (supra), where the following contentions of learned counsel for the petitioner therein were noticed: " ... But that does not mean that the witness, party; or otherwise has the freedom to aver all irrelevant matters through the affidavits. The affidavits envisaged by Sub-Rule 1 of Rule 4 of Order XVIII are affidavits in lieu of chief examination or proof affidavits and such affidavits are expected to contain only matters which are relevant to the facts in issue in the suit or those relevant aspects which the witness endeavours to prove before the court. The affidavits envisaged by Sub-Rule 1 of Rule 4 of Order XVIII are affidavits in lieu of chief examination or proof affidavits and such affidavits are expected to contain only matters which are relevant to the facts in issue in the suit or those relevant aspects which the witness endeavours to prove before the court. It is always open to the opposite party to point out to the court that irrelevant matters have been averred in the affidavit and once it is so pointed out, the court after considering the affidavit can either direct the deponent to file a [3] fresh affidavit after eschewing the irrelevant matters or the court itself can eschew the irrelevant matters averred through the affidavit, so that the cross - examination will be confined to relevant matters sought to be proved by the affidavit." After noticing the above referred contentions, the court expressed its opinion in the following paragraph: " The learned Subordinate Judge was certainly wrong in posting the case for the filing of counter affidavit to the proof affidavit and in rejecting the proof affidavit on the reason that the opposite party has filed objections. If the court felt that irrelevant matters have been stated in the affidavit what the Court should have done was to direct the petitioner, a party witness appearing voluntarily, to file a fresh proof affidavit confined to the facts in issue in the suit. Since the affidavit is in lieu of chief examination the entirety of the affidavit will come on record as part of the evidence. Therefore the question whether the averments in the proof affidavit are founded on pleadings or are otherwise relevant to the fact in issue will be pertinent." Bombay High Court in Cesar Rego Fernandess case (supra) considering a similar issue opined as under: "In my view, none of the aforesaid judgments are the authorities on the fact that the Court can strike out paras from an affidavit-inevidence which is filed as examination-in-chief, by the parties. If, there is any statement in the affidavit which according to the opposing party is beyond the pleadings, then it is always open to such a party to put this to the witness in his cross-examination. If, there is any statement in the affidavit which according to the opposing party is beyond the pleadings, then it is always open to such a party to put this to the witness in his cross-examination. It is also open to the court to consider the relevance and weightage to be given to any such statement in the examination- in-chief when there is no foundation laid in the pleadings. It would, however, not be correct to strike out paras in the affidavit itself. Such an application could not be supported by any provision of Civil Procedure Code. In the circumstances, subject to the right of the original defendants to put questions to the witness in the cross-examination about any portion in the examination not being found in the pleadings and subject to the right of the Court to decide the question of relevance and weightage to be given to such pleadings, at the stage of disposal of the suit. Rule made absolute in terms of prayer CR No. 778 of 2009 [4] clause (a)." In Ameer Trading Coporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355, Honble the Supreme Court observed as under : "The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever the examination-in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open Court. There may be cases where party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court." Orissa High Court in Para Biswal v. Janjali Khan, AIR 2005 Orissa 7, while dealing with an identical issue opined as under: "The discussion made above thus makes it clear that the evidence produced on affidavit is to be taken on record. The time of the Court would not be wasted in examining such witness in open Court." Orissa High Court in Para Biswal v. Janjali Khan, AIR 2005 Orissa 7, while dealing with an identical issue opined as under: "The discussion made above thus makes it clear that the evidence produced on affidavit is to be taken on record. The evidentiary value of such evidence has to be considered along with other evidence on record. The Court has no right to reject the evidence and direct the witness to file a fresh affidavit. Law is no more res integra that if there is variance between the pleadings and the evidence, the evidence beyond the pleadings should not be taken into consideration and should be ignored. If P.W.3 has made certain statements in his evidence rendered through affidavit, contrary to the pleadings and/or in variance with the pleadings of the parties the said statements are to be ignored and not that the entire evidence/affidavit is to be discarded. Under such circumstances, it is open to the defendants in course of crossexamination to confront the witness with the pleadings and/or bring to the notice of the Court in course of hearing. The intention of the Legislature as would be evident from O. 18 R.4 of the Civil Procedure Code as would evident from the proviso is, if any of the parties have any objection to the evidence adduced by a witness through affidavit, the same can be challenged only at the time of hearing of the suit. In view of the aforesaid clear position of law while answering the question posed I hold that the trial Court has no authority or jurisdiction to discard, reject or return the evidence adduced by a witness through affidavit. I have thus no hesitation to quash the impugned order dated 13.8.2004 and direct the learned Civil Judge (Junior Division), Kujanga to accept the evidence of P.W. 3 Ananta Charan Swain filed through affidavit and to proceed with the suit strictly in consonance with O. 18, Rr. I have thus no hesitation to quash the impugned order dated 13.8.2004 and direct the learned Civil Judge (Junior Division), Kujanga to accept the evidence of P.W. 3 Ananta Charan Swain filed through affidavit and to proceed with the suit strictly in consonance with O. 18, Rr. 4 and 5 of the Civil Procedure Code and the procedure indicated in the preceding paragraphs." A perusal of the impugned order shows that the learned court below while noticing that pleadings of both the parties are quite detailed and lengthy and so are the affidavits filed observed that in the affidavit filed in examination-inchief by the respondent, some of the contents are in argumentative form, however, in case ultimately it is found that the respondent had travelled beyond pleadings, the evidence to that extent will be ignored at the time of consideration thereof at arguments stage. In view of pronunciation of law as referred to above in Cesar Rego Fernandess case; Ameer Trading Corporation Ltd.s case and Para Biswals case (supra) and disagreeing with the view of Kerala High Court in T.K.Gangans case (supra), I do not find any illegality has been committed by the learned court below in dismissing the application filed by the petitioner for either deleting some parts of the affidavit or directing for filing of a fresh affidavit. In case the respondent has stated certain facts in the affidavit, which are either beyond pleadings or are in argumentative form or which do not have any corroborative material on record, these facts can very well be put to the respondent in her crossexamination and demolished. The quality of the evidence led by the respondent will be considered at the final stage of arguments. Accordingly, the present petition is dismissed.