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2011 DIGILAW 2361 (HP)

Garja Ram v. Kamla Devi

2011-08-03

DEEPAK GUPTA

body2011
JUDGEMENT Deepak Gupta, J.(Oral). By means of this petition, the petitioner has challenged the order dated 22.2.2011 passed by the learned Civil Judge (Sr. Division), Bilaspur, District Bilaspur, HP rejecting the application filed by the petitioner (hereinafter referred to as defendant No.1) praying that the affidavit filed by respondent No.1 (hereinafter referred to as the plaintiff) be ordered to be struck off and she be directed to file a fresh affidavit. 2. According to the plaintiff, she is the legally wedded wife of defendant No.1 and out of this wedlock three children were born. According to her, defendant No.1 has illegally “kept defendant No.2 as his wife/concubine” and one child has been born out of this wedlock. The case of the petitioner-defendant is that the plaintiff is not his wife and defendant No.2 is his legally wife. This is the short dispute between the parties, but like in all matters of this nature, ego takes prominence and things which are not within the realm of law are alleged against each other. 3. In terms of Order 19 of CPC, the plaintiff was directed to file her affidavit in evidence. Order 19(1) reads as follows:-“Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reasons 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 authorizing the evidence of such witness to be given by affidavit” 4. The plaintiff filed an affidavit which has been annexed herewith as Annexure P-3. I have perused the affidavit and find that the affidavit is a mixture of facts, hearsay, argumentative and also philosophical. When an affidavit has to be filed in terms of Order 19 of CPC, which has to be read in evidence, a party is entitled to lead evidence only on the issues and the affidavit filed by way of evidence cannot take the place of written arguments. The affidavit must be limited to the factual situation and should not be argumentative or philosophical. The affidavit must be limited to the factual situation and should not be argumentative or philosophical. I am constrained to observe that the learned trial Court was absolutely wrong in holding that the opposite party cannot direct what sort of affidavit should be filed by a witness. In my considered opinion, it is the role of the Court to ensure that every affidavit is filed in consonance with the provisions of law, and if it is brought to the notice of the Court that the affidavit goes beyond the issues, then the said affidavit can be struck off. 5. The learned trial Court also did not take into consideration the provision of Order 19 Rule 3 which read as follows:- “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 filing the same.” 6. Sub Rule 2 of Rule 3 clearly lays down that the affidavit should not contain unnecessary hearsay averments, nor should it be argumentative in nature. When Order 19 was introduced by the Code of Civil Procedure (Amendment Act), the purpose behind enacting this provision was that time of the Court should not be wasted in recording evidence. Experience of 10 years has shown that this experiment has miserably failed. It is common knowledge that because Courts are lenient, affidavits are filed wherein the entire plaint is reproduced and sometimes like in the present case, even arguments and philosophy are included in the affidavit. This is not the purpose of Order 19 of CPC. Once such a lengthy affidavit containing irrelevant matter is admitted in evidence, then obviously the cross-examination becomes longer leading to even more delays. 7. It would also be appropriate to clarify that there can be cases where the Presiding Officers can direct the parties or the witnesses to appear personally in Court. In some cases, including the present one, the Court should have the advantage to see the demeanour of the witnesses. 7. It would also be appropriate to clarify that there can be cases where the Presiding Officers can direct the parties or the witnesses to appear personally in Court. In some cases, including the present one, the Court should have the advantage to see the demeanour of the witnesses. To give another example, supposing a Will has to be proved and two attesting witnesses of the Will are summoned by the party who wants to prove the Will, in such a case, the Court would be justified in directing that instead of filing affidavits, their examination-in-chief should be recorded in Court itself. The Presiding Officers, therefore, must apply their mind and keeping in view the facts and circumstances of each case decide, whether the examination-in-chief should be by way of affidavit or, whether the person should appear personally in Court to give evidence. Even if affidavits are to be filed they shall be limited to evidence and the issues in the case. As already observed above, this practice of filing affidavits in evidence has been counter productive and in fact, day in and day out, this Court has seen that absolutely irrelevant facts are mentioned in the affidavits and this leads to unnecessarily long cross-examination, wasting precious Court time. 8. After perusal of the affidavit, I have no doubt in my mind that parts of the affidavit are prolix. The affidavit is highly repetitive. There are certain facts stated in the affidavit which on the face of it are hearsay. Most of the affidavit is argumentative and philosophical in nature. Such an affidavit should not have been taken on record. Therefore, I set aside the order of the learned trial Court and direct that the affidavit be struck off from the record. I further direct that the main parties, i.e. the plaintiff and defendant No.1 shall both be examined in person in Court and not on the basis of affidavits. Since, this suit was filed in the year 2004 and is still at the stage of plaintiff’s evidence, the learned trial Court shall ensure that the same is disposed of at the earliest and in any event not later than 31st August, 2012. If necessary, the learned trial Court shall conduct hearing on day-to-day basis. In case, any party uses dilatory tactics, the other party shall be free to approach this court for modification of the order. 9. If necessary, the learned trial Court shall conduct hearing on day-to-day basis. In case, any party uses dilatory tactics, the other party shall be free to approach this court for modification of the order. 9. In view of the above discussion, the petition is disposed of. No costs. *************************************************************************