Can the Court order deletion of portions of ‘Evidence Affidavit’?

                                                                                      -Shivam Goel

Introduction:

According to Section 137 of the Indian Evidence Act, the examination of a witness by the party who calls him is called his examination-in-chief; the examination of a witness by the adverse party is called his cross-examination; and, the examination of a witness, subsequent to the cross examination by the party who called him, is called his re-examination. It is settled law that once the affidavit in lieu of examination-in-chief is filed, it partakes the character of the examination-in-chief of the concerned witness. A party to the suit cannot be permitted to travel beyond his pleadings. If any evidence is tried to be adduced which has no foundation in pleadings, the court always has the power to discard such evidence while finally deciding the suit or proceeding. The very object of Order XVIII, Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) is to ensure that the time of the Court is not wasted in recording lengthy examination-in-chief, and, consistent with this object is the premise that the objection raised to any part of the affidavit in lieu of examination-in-chief should be considered at the time of final hearing of the suit or proceeding. It is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence, that is, if a portion of the Evidence Affidavit is found to be irrelevant or if it is found that a portion of the Evidence Affidavit has no foundation in the pleadings, the Court can always discard it while deciding the suit.

 

Object of Order XVIII, Rule 4 of the CPC:

The purpose of Order XVIII, Rule 4 of the CPC is to ensure that there is speedy trial of the case and the time of the Court is not wasted in recording lengthy examination-in-chief. The objections raised albeit any portion (or part) of the Evidence Affidavit is to be considered at the time of final hearing of the suit or proceeding. The party raising the objections cannot insist upon the Court to consider the said objections before the cross examination of the witness commences. The rival party can cross-examine the witness by inviting the attention of the concerned witness to the statements which according to the rival party are objectionable; even in such cases it is at the time of the final hearing that the objections will have to be considered by the Court though there may not be any particular objection in writing. It is settled law that, it is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence, thus, if a portion of the Evidence Affidavit is found to be irrelevant or if it is found that a portion of the Evidence Affidavit has no foundation in the pleadings, the Court can always discard it while deciding the suit. A bare perusal of Order XVIII, Rule 4 read with Order XIX, Rule 3 of the CPC makes it amply clear that no Evidence Affidavit can contain material that is hearsay or argumentative. Every ‘Evidence Affidavit’ as per law must be confined to the facts that its deponent can prove. Thus, an affidavit in lieu of examination-in-chief is constrained by two factors: (1) it must be an examination-in-chief, and, (2) it must be an affidavit; this means that it must conform to the requirements of the Indian Evidence Act and the provisions of Order XIX, Rule 3 of the CPC, and a document that does not conforms to the above stated two requirements is neither an affidavit, nor is an examination-in-chief for the purposes of Order XVIII, Rule 4 of the CPC.

 

Section 1 of the Indian Evidence Act vis-à-vis Order XVIII, Rule 4 of the CPC:

According to Section 1 of the Indian Evidence Act, the provisions of the Indian Evidence Act are to apply to the evidences presented to any court, officer or arbitral proceedings, but are not to apply to affidavits. If this is so, the moot question that arises for consideration is as to how then we are to read Order XVIII, Rule 4 which clearly mandates that examination-in-chief is to be adduced by way of an affidavit? The only way to harmonize these two provisions (Section 1 of the Indian Evidence Act and Order XVIII, Rule 4 of the CPC) is to say that since Order XVIII, Rule 4 of the CPC is a procedural innovation aimed at expedition of trial, the exclusion of Section 1 of the Indian Evidence Act is not intended to apply to such affidavits (Evidence Affidavits under Order XVIII, Rule 4) but only to affidavits covered by some, but not all, procedural provisions such as those for interlocutory applications. It must be remembered that even Order XIX of the CPC speaks of “proof”. This undoubtedly points towards the applicability of the Indian Evidence Act to affidavits contemplated by Order XIX of the CPC. It is in this context that the power of the court in relation to ruling out irrelevant material from an Evidence Affidavit, which prima facie does not constitute ‘evidence’ properly so called, is to be seen.

 

Evidence Affidavit cannot contain Submissions, Arguments and Contentions which are in the Nature of Pleadings:

The contents of an Evidence Affidavit can be segregated into the following four broad categories: (i) matters that are relevant and are within the personal knowledge of the deponent; (ii) matters that are possibly relevant but are not within the personal knowledge of the deponent; (iii) matters that are neither relevant nor are within the personal knowledge of the deponent; and (iv) statements in the nature of legal submissions, arguments and pleadings.

So far as statements in the nature of legal submissions, arguments and pleadings are concerned, these are clearly beyond the pale of examination-in-chief. Matters which are relevant and are within the personal knowledge of the deponent indisputably form an intrinsic part of the examination-in-chief. The statements which are only possibly relevant, whether based on personal knowledge of the deponent or otherwise, are within the pale of examination-in-chief, because the issue of relevancy is always subject to the final arguments at the final hearing of the suit. But the material which is completely extraneous and is entirely outside the domain of the personal knowledge of the deponent cannot possibly be part of the testimony of the deponent examined in chief. If a witness attempts to state in his examination-in-chief that he heard someone say that a particular event occurred, then, this by itself will not prove the occurrence of that particular event; at best such statements can be termed as mere hearsay.[1] However, if X says what he heard from Y, not as proof of the happening of the event, but as what was said by Y regarding the event in his hearing, there is no objection to the statement.

The Indian Evidence Act restricts as to what evidence may be led as examination-in-chief, that is, traverses in the nature of pleadings cannot form part of the Evidence Affidavit. The provisions of Order XVIII, Rule 4 of the CPC are procedural in nature and the Indian Evidence Act is substantive law; it is settled law that procedural law cannot expand the ambit and the scope of the substantive law. If an Evidence Affidavit is permitted to contain legal submissions, arguments and traverses in the nature of pleadings then the consequences qua it would be unimaginable for a cross-examination then in each case will sprawl over hundred pages and most unfortunately the objective of Order XVIII, Rule 4 of the CPC, that is, acceleration of trial, would stand defeated.

 

How should a Court approach a non-conforming affidavit, that is, the one that contains material that is clearly inadmissible or demonstrably irrelevant?

A party in a given case may, subject to facts and circumstances of each case, be permitted to replace its non-conforming Evidence Affidavit with the one that conforms. The Court has the power in each case to delete any of the portions of an Evidence Affidavit which is nothing but a verbatim reproduction of the pleadings. The Court has the power to rule that those portions which are in the nature of legal submissions and arguments be excluded from consideration as testimony and a cross-examiner will thereby be at liberty to ignore the non-conforming portions without fear of an adverse inference being drawn.

 

Is withdrawal of ‘Evidence Affidavit’ permissible?

Generally speaking, there can never be withdrawal of an Evidence Affidavit just as there can never be a withdrawal of an examination-in-chief conducted directly in court. But, there are two situations that require consideration.

First, where the witness is no longer physically available, that is, he has expired between the time of filing of his Evidence Affidavit and the time for his cross examination. The law in this regard is well settled, and it is simply this, that where the testimony is incomplete by reason of death or incapacity of the witness before cross examination, the evidence, admissible when given, does not cease to be so merely on account of that intervening factual circumstance. What probative or evidentiary value is to be attached to this evidence is another matter, and it turns on the circumstances of each case. The Court may seek independent corroboration of that evidence; it may accept it, albeit cautiously, and that is no infirmity per se in the final decision.[2]

Second, where the witness although is available and an Evidence Affidavit has been filed, but, the witness is not tendered for cross examination as a sort of litigation strategy. Here the party which led the evidence of a particular witness prefers to, as it were, take the high road. He files an Evidence Affidavit and then simply does not produce the witness for cross examination. It is impossible to allow this without consequence. The right to cross examination is a fundamental strut of adversarial legal system and is a vital facet of the principles of natural justice. Generally speaking, if a witness is not produced in the witness box for cross examination by a party then that party is divested from relying on any part of the Evidence Affidavit of that witness, however, the opposite party is always at liberty to benefit from the admissions made by that witness in his Evidence Affidavit. It is settled law that where a party does not offer itself for cross examination, it will give rise to a presumption under Section 114 of the Indian Evidence Act that the case that the party sets up is incorrect.

The question that requires some deliberation is that, if the deponent (examination-in-chief by way of an affidavit) has not made itself available for cross examination, would that mean that the documents already admitted into evidence on the basis of that Evidence Affidavit can later be rejected or removed from the evidentiary record? The Bombay High Court in the matter of, Banganga Cooperative Housing Society Ltd. v. Vasanti Gajanan Nerurkar[3], held that, it is not correct to state that, a document once properly introduced into evidence can then be expunged or excised from the record. However, in the absence of cross examination, the person propounding that document may not be allowed to rely on it, but it may be used by the other side as an admission.

 

Excursus:

  1. An Evidence Affidavit cannot contain matter that is, irrelevant, inadmissible or both, or, is in the nature of legal arguments, submissions or prayers for these are not in the nature of ‘evidence’ as required by law.
  2. No Evidence Affidavit under Order XVIII, Rule 4 of the CPC can be allowed to be withdrawn for it is evidence as soon as it is affirmed.
  • Where an Evidence Affidavit is filed and the witness or deponent, though otherwise available, is not made available for cross examination, the well established consequences in law will follow, that is, the opposite party will be entitled to submit that an adverse inference be drawn against such a witness or the party who fails to produce that witness for cross examination. Further, should the Evidence Affidavit contain any admissions, those may be used by the opposite party. Also, so much of the evidence as is against the party entitled to cross examination but which has gone untested for want of production of the witness will be liable to be ignored.
  1. It is permissible and is often necessary for a Court, with a view to expedite the trial and to avoid a needlessly protracted cross examination on irrelevancies and matter that is not ‘evidence’ to order that any such material that does not constitute evidence be struck off or be ordered or directed to be ignored without fear of adverse consequence.

[1] Harish Loyalka & Anr v. Dileep Nevatia & Ors, Suit No. 3598 of 1996, High Court of Judicature at Bombay, Decided on: 07.04.2014 (G.S. Patel, J.)

[2] Krishan Dayal v. Chandu Ram, (1969) ILR 1090

[3] 2015 SCC Online Bom 3411

Format of Evidence Affidavit on behalf of Witness

Format of Evidence Affidavit on behalf of Witness

affidavitBEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, _____

_____ son of _____

Versus

_____

Complaint Under Section _____ of the Consumer Protection Act _____ Amended upto date
EVIDENCE BY WAY OF AFFIDAVIT ON BEHALF OF WITNESS

I, _____ son of _____ resident of Village _____, Tehsil _____, District _____ do hereby solemnly affirm and declare as under :

1-    That on _____ I with _____ son of _____ all residents of _____, Tehsil _____, District _____were _____.
2-     That  __________.

Deponent

Verification:
Verified that the contents of my above affidavit are true to best of my knowledge and belief and nothing concealed therein.
Verified at _____ on _____

Deponen

Format of Suit for permanent injuction

Format of Suit for permanent injuction

Birth Certificate Affidavit FormatIN THE COURT OF _____
_____    Versus   _____

Suit for permanent Injunction

APPLICATION FOR ADDUCING THE ADDITIONAL EVIDENCE BY WAY OF TENDERING _____CERTIFICATES BEFORE THIS HON’BLE COURT

RESPECTFULLY SHOWETH:

1- That the above noted case is pending in this Hon’ble court and is fixed for today.
2- That due to some oversightness the applicants /petitioners could not deposit the _____ Certificates of the applicants/petitioners before this Hon’ble court at the time of filing of the petition.
3- That the _____ certificates of the petitioners are necessary documents for the proper adjudication of the above noted petition.
4- That now the applicants/petitioners want to adduce their evidence by way of tendering the _____ Certificates before this Hon’ble court.
It is, therefore, prayed that the applicants/petitioners may kindly be allowed to adduce their additional evidence by way of tendering their _____ certificates in the interest of justice.
Dated _____

PETITONERS

Through counsel
_____ ADVOCATE, _____

Format of Additional Evidence on behalf of petitioner

Format of Additional Evidence on behalf of petitioner

Birth Certificate Affidavit FormatIN THE COURT OF _____

_____             Versus         _____
CLAIM PETITION U/S _____OF _____

APPLICATION FOR ADDUCING THE ADDITIONAL EVIDENCE ON BEHALF OF THE PETITIONER.

AFFIDAVIT

I, _____ son of _____ resident of _____, District _____, do hereby solemnly affirm as under:-
1-    That due to the negligence of counsel of deponent, the deponent, could not produce _____, _____ who issued the _____ to the deponent in which the petitioner _____ issued by the _____ is already on the court record and the said certificate is required to be proved by the said _____. However, it is also made clear that the age of the deponent is _____, so it is necessary to produce the said wittiness before this Hon’ble court in order to decide the matter effectively and completely. The deponent tried to his best and made the diligence to produce the aid witness but the statement of the said witness could not be recorded in this Hon’ble court while the deponent has already deposited the expenses of the said witness
2-    That the statement of the said witness is very necessary to prove the said _____ certificate of the deponent and if the said witness is not allowed to be produced by the petitioner in this Hon’ble court and the said _____ certificate of the deponent is not proved on the file, the deponent will suffer a great financial loss beyond his control
3-    That there is no fault of the deponent in producing the said witness at the time when the petitioner led his evidence because inspite of deposition of the expenses of the witness, the said witness could not produce and examined due to the negligence of the counsel of the deponent

Deponent

Verification:-
Verified that the above contents of this affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein.
Verified at _____ on _____

Deponent

Format of Affidavit for Evidence on behalf of Witness

Format of Affidavit for Evidence on behalf of Witness

affidavitBEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, _____

_____ son of _____

Versus

_____

Complaint Under Section _____ of the Consumer Protection Act _____ Amended upto date
EVIDENCE BY WAY OF AFFIDAVIT ON BEHALF OF WITNESS

I, _____ son of _____ resident of Village _____, Tehsil _____, District _____ do hereby solemnly affirm and declare as under :

1-    That on _____ I with _____ son of _____ all residents of _____, Tehsil _____, District _____were _____.
2-     That  __________.

Deponent

Verification:
Verified that the contents of my above affidavit are true to best of my knowledge and belief and nothing concealed therein.
Verified at _____ on _____

Deponent

Format of Suit for permanent injuction

Suit for permanent Injunction

Format of Suit for permanent injuction
Format of Suit for permanent injuction

IN THE COURT OF _____
_____    Versus   _____

 

APPLICATION FOR ADDUCING THE ADDITIONAL EVIDENCE BY WAY OF TENDERING _____CERTIFICATES BEFORE THIS HON’BLE COURT

RESPECTFULLY SHOWETH:

1- That the above noted case is pending in this Hon’ble court and is fixed for today.
2- That due to some oversightness the applicants /petitioners could not deposit the _____ Certificates of the applicants/petitioners before this Hon’ble court at the time of filing of the petition.
3- That the _____ certificates of the petitioners are necessary documents for the proper adjudication of the above noted petition.
4- That now the applicants/petitioners want to adduce their evidence by way of tendering the _____ Certificates before this Hon’ble court.
It is, therefore, prayed that the applicants/petitioners may kindly be allowed to adduce their additional evidence by way of tendering their _____ certificates in the interest of justice.
Dated _____

PETITONERS

Through counsel
_____ ADVOCATE, _____

Format of Additional Evidence on behalf of petitioner

Format of Additional Evidence on behalf of petitioner
Format of Additional Evidence on behalf of petitioner

Format of Additional Evidence on behalf of petitioner

IN THE COURT OF _____

_____             Versus         _____
CLAIM PETITION U/S _____OF _____

APPLICATION FOR ADDUCING THE ADDITIONAL EVIDENCE ON BEHALF OF THE PETITIONER.

AFFIDAVIT

I, _____ son of _____ resident of _____, District _____, do hereby solemnly affirm as under:-
1-    That due to the negligence of counsel of deponent, the deponent, could not produce _____, _____ who issued the _____ to the deponent in which the petitioner _____ issued by the _____ is already on the court record and the said certificate is required to be proved by the said _____. However, it is also made clear that the age of the deponent is _____, so it is necessary to produce the said wittiness before this Hon’ble court in order to decide the matter effectively and completely. The deponent tried to his best and made the diligence to produce the aid witness but the statement of the said witness could not be recorded in this Hon’ble court while the deponent has already deposited the expenses of the said witness
2-    That the statement of the said witness is very necessary to prove the said _____ certificate of the deponent and if the said witness is not allowed to be produced by the petitioner in this Hon’ble court and the said _____ certificate of the deponent is not proved on the file, the deponent will suffer a great financial loss beyond his control
3-    That there is no fault of the deponent in producing the said witness at the time when the petitioner led his evidence because inspite of deposition of the expenses of the witness, the said witness could not produce and examined due to the negligence of the counsel of the deponent

Deponent

Verification:-
Verified that the above contents of this affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein.
Verified at _____ on _____

Deponent

 

Format of Evidence Affidavit on behalf of Witness

Format of Evidence Affidavit on behalf of Witness

Format of Evidence Affidavit on behalf of Witness
Format of Evidence Affidavit on behalf of Witness

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, _____

_____ son of _____

Versus

_____

Complaint Under Section _____ of the Consumer Protection Act _____ Amended upto date
EVIDENCE BY WAY OF AFFIDAVIT ON BEHALF OF WITNESS

I, _____ son of _____ resident of Village _____, Tehsil _____, District _____ do hereby solemnly affirm and declare as under :

1-    That on _____ I with _____ son of _____ all residents of _____, Tehsil _____, District _____were _____.
2-     That  __________.

Deponent

Verification:
Verified that the contents of my above affidavit are true to best of my knowledge and belief and nothing concealed therein.
Verified at _____ on _____

Deponent

Affidavit Format for Evidence

Affidavit Format for Evidence

Affidavit Format for Evidence
Affidavit Format for Evidence

BEFORE THE _________

_________        VERSUS         _________

Application Under the _________

Evidence by way of affidavit on behalf of the _________

I, _________ son of _________,  resident of _________, District _________,do hereby solemnly affirm and declare as under:-

1-    That the deponent _________.
2-    That the respondent _________.
3-    That since the date of _________.
4-    That on _________.
5-    That the _________.
6-    That _________.
7-    That the _________.
8-    That the _________.
9-    That the _________.

                                                                                                                                                                                    Deponent

Verification:-
Verified that the above contents of this affidavit/ evidence are true and correct to the best of my knowledge and belief and nothing has been concealed therein.

Verified at _________ On ________

                                                                                                                                                                                     Deponent

Affidavit Format Of Evidence

Affidavit Format Of Evidence
Affidavit Format Of Evidence

BEFORE THE _________

_________        VERSUS         _________

Application Under the _________

Evidence by way of affidavit on behalf of the _________

I, _________ son of _________,  resident of _________, District _________,do hereby solemnly affirm and declare as under:-

1-    That the deponent _________.
2-    That the respondent _________.
3-    That since the date of _________.
4-    That on _________.
5-    That the _________.
6-    That _________.
7-    That the _________.
8-    That the _________.
9-    That the _________.

                                                                                                                                                              Deponent

Verification:-
Verified that the above contents of this affidavit/ evidence are true and correct to the best of my knowledge and belief and nothing has been concealed therein.

Verified at _________ On ________

                                                                                                                                                             Deponent