Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1877 (RAJ)

Manish Dharmavat v. Bhanwar Lal Jain

2022-06-28

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - The present writ petition has been preferred against the order dated 02.07.2013, whereby petitioners' application under Order 18 Rule 4 read with Section 151 of Civil Procedure Code, has been rejected by the trial Court. 2. Mr. Thanvi, learned counsel for the petitioners invited Court's attention towards the plaint that was filed by the respondent-plaintiff and the affidavit (Annex.4) and submitted that affidavit in question is ad-verbatim the plaint. 3. He submitted that the affidavit in such form ought not to have been accepted by the trial Court. He submitted that such affidavit is in conflict of the mandate of Section 142 of the Evidence Act. 4. Mr. Maheshwari, learned counsel appearing for the respondents submitted that the order impugned is perfectly just and valid and there is no statutory embargo, which restricts filing of affidavit in terms of the pleadings. 5. Mr. Maheshwari, learned counsel appearing for the respondents further argued that Section 142 of the Evidence Act, 1872 is of little help to the petitioners, as the same simply puts an embargo on asking leading questions to a witness. 6. Heard learned counsel for the parties and perused the material available on record. 7. The fact that the affidavit is ad-verbatim the plaint, is writ large and rather admitted. 8. Affidavit in evidence is a substitute for oral evidence post substitution of Order 18 Rule 4 of the Code by the CPC Amendment Act, 2002. 9. If the affidavit, which is an exact copy of the plaint, is taken on record, the affidavit would lose its sanctity. A witness is required to depose the facts known to him. It should be in concise form avoiding the argumentative pleadings and legal grounds. 10. True it is, that there are no restrictions on the affidavit being exactly like the pleadings, but the administration of justice, particularly need of speedy trial, requires that an affidavit should be in concise form stating material part of the contentions while ignoring formal part of the pleadings. 11. In the present case, if the subject affidavit in its present form, is allowed to continue on record, it would entail unwarranted assertions and lengthy cross-examination. 12. 11. In the present case, if the subject affidavit in its present form, is allowed to continue on record, it would entail unwarranted assertions and lengthy cross-examination. 12. In this regard, provisions contained in Order 19 Rule 3 of the Code also become relevant, which stipulates that the affidavit should be confined to such facts which a deponent is able to prove on his own knowledge. 13. A plaint may contain various assertions which are required to be proved by more than one witness and it may also contain legal submissions which are not required to be proved. If the plaint itself is reproduced in the affidavit filed by one deponent, then, the opposite party will be in a fix or dilemma during cross-examination as to which of the many witnesses should be cross-examined qua a particular assertion. 14. In addition to the aforesaid and mandate of Order 29 Rule 3 of the Civil Procedure Code, a useful reference may be made of amendment introduced in the Code for "Commercial disputes of Specified Value" in the form of Order 29 Rule 6(B), which reads thus:- "6. Format and guidelines of affidavit of evidence. -- An affidavit must comply with the form and requirements set forth below:-- (a) -------- (b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or contains the legal grounds of any party's case, the Court may, by order, strike out the affidavit or such parts of the affidavit, as it deems fit and proper; (c) -------- " 15. It may be observed that this Court has persuaded to allow the petition on the reasons given hereinabove and reference of above quoted provisions of Order 29 Rule 6(B) has been made in order to show the mandate of law. 16. In view of the discussion aforesaid, the present petition is allowed. 17. The impugned order dated 02.07.2013 is quashed and set aside, and petitioners' application dated 22.02.2013 filed under Section 151 of the Civil Procedure Code is allowed. 18. The affidavit filed by the respondents on 24.10.2011 is taken off the record. The same shall be kept in part 'D'. 19. The respondents shall file a fresh affidavit within a period of six weeks before the trial Court, whereafter the trial Court shall proceed, in accordance with law. 20. 18. The affidavit filed by the respondents on 24.10.2011 is taken off the record. The same shall be kept in part 'D'. 19. The respondents shall file a fresh affidavit within a period of six weeks before the trial Court, whereafter the trial Court shall proceed, in accordance with law. 20. The present petition so also the stay petition stand disposed of accordingly.