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EMCIPI Electronics Private Limited & Others v/s Enclave Hospitality Private Limited & Others

    Chamber Summons (Lodging) No. 220 of 2019 in Suit No. 932 of 2016

    Decided On, 06 February 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE R.D. DHANUKA

    For the Plaintiffs: A.M. Dhar I/b Yuvraj, Advocates. For the Defendants: D1 to D3, Aditi Naikare I/b Pradeep Thorat, Atul Daga, Deepak Jojo I/b Wadia Ghandy & Co., Advocates.



Judgment Text


Oral Judgment:

1. The chamber summons is not on board. Taken on board by consent of parties.

2. By this chamber summons, the applicant seeks an order and direction to expunge various portions of the affidavit 4th August, 2017 of Ram Kishan Singh tendered in lieu of his examination in chief under Order XVIII Rule 4 of the Code of Civil Procedure, 1908.

3. The applicant in the chamber summons has objected to the various portions of the affidavit in lieu of examination in chief dated 4th August, 2017 on the ground that either these depositions are argumentative or in the nature of the submissions and pleading, the matters are wholly irrelevant, misconceived and beyond the pleadings, are demonstratively hearsay and thus shall be excluded. However, during the course of arguments learned counsel for the applicant (original defendant no.4) pressed this chamber summons only in respect of paragraphs 21, 22, part of 23, 24, 25, 26, 27, 28 and 30 on the ground that these portions of the affidavit are argumentative in nature and are by way of legal submissions and thus cannot form part of the affidavit in lieu of examination in chief under Order XVIII Rule 4 of the Code of Civil Procedure, 1908. Learned counsel for the applicant placed reliance on the judgment of this Court in case of Rajendra Singh Chhatrasal Singh Kushwaha vs. Jitednra Singh Rajendra Singh Kushwah & Ors., 2013(6) Mh.L.J. 802 and an unreported judgment delivered on 7th April, 2014 in case of Harish Loyalka & Anr. vs. Dileep Nevatia & Ors. in Suit No.3598 of 1996.

4. Learned counsel for the plaintiffs on the other hand opposed this chamber summons on the ground that there is no such provision under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 permitting such application for deleting any portion of the affidavit in lieu of examination in chief. The next objection of the learned counsel for the plaintiffs is that in the affidavit in support of the chamber summons, no details are furnished by the applicant showing as to which portion of the affidavit in lieu of examination in chief is argumentative or by way of submissions or based on hearsay.

5. Learned counsel for the plaintiffs also invited my attention to these paragraphs and would submit that none of these paragraphs are in the nature of argumentative or submissions. He submits that it is for the witness to decide what should be part of his evidence and thus no objection of any nature can be raised by the defendants. It is submitted that it is for the defendants to cross-examine this witness on the entire deposition made in the affidavit in lieu of examination in chief and thus no part of affidavit in lieu of examination in chief can be struck off by this Court.

6. Insofar as the judgments relied upon by Mr.Daga, learned counsel for the applicant is concerned, it is submitted by the learned counsel for the plaintiffs that none of these judgments are relevant for the purpose of deciding the issues raised by the defendants and thus would not assist the case of the applicant.

7. A perusal of the affidavit in support of the chamber summons indicates that various paragraphs of the affidavit in lieu of examination in chief are objected on various grounds more particularly set out in paragraph 9 of the affidavit in support. Learned counsel for the applicant however, pressed this chamber summons only on the ground that paragraphs 21, 22, part of 23, 24, 25, 26, 27, 28 and 30 are argumentative or in the nature of submissions and pleadings and thus cannot be permitted to form part of the affidavit in lieu of examination in chief. Insofar as paragraph 30 of the affidavit in lieu of examination in chief is concerned, it is objected on the ground that in that paragraph of the affidavit in lieu of examination in chief, the witness has reiterated the entire plaint as if part of the affidavit in lieu of examination in chief which cannot be permitted.

8. Insofar as the first submission of the learned counsel for the plaintiffs that this chamber summons for striking of some of the paragraphs from the affidavit in lieu of examination in chief is not maintainable under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 is concerned, in my view there is no substance in this submission made by the learned counsel for the plaintiffs. This Court in case of Rajendra Singh Chhatrasal Singh Kushwaha (supra) in a chamber summons has held that Order XVIII Rule 2 of the Code of Civil Procedure, 1908, makes a party entitled to produce his evidence in support of all the issues which he is bound to prove. The Court has to see whether evidence proposed to be led by a party is relevant in support of the issues involved. Only such evidence which is relevant in support of the issues, the party is permitted to prove such issue by leading relevant evidence. This Court also held that if the Court could not have permitted a party to lead such evidence which was not relevant to the issue involved under Order XVIII Rule 2 of the Code of Civil Procedure, 1908, the Court cannot permit such party to lead evidence not related to the issue involved which party is not bound to prove. In my view, Court has inherent powers under section 151 of the Code of Civil Procedure, 1908 to strike off the irrelevant and impermissible part of evidence from the affidavit in lieu of examination in chief.

9. I have perused the deposition made in paragraphs 21, 22, part of 23, 24 to 28 and 30. A perusal of the deposition made in these paragraphs clearly indicates that the witness has challenged the development agreement by making various submissions as to how the said development agreement is contrary to the Indian Contract, Act, 1872, Registration Act 1908, the Partnership Act, 1932 and various other provisions of law. The witness has also deposed as to why the said development agreement cannot be enforced and why the same deserves to be declared as non-est in the eyes of law. The deponent has also deposed that the development agreement is dehors the mandate of law etc. and that it should be declared as null and void under section 48 of the Registration Act, 1908.

10. In my view, the oral evidence can be led only in respect of the disputed facts and to prove the existence and contents of the disputed documents. In my view, since these arguments and submissions could not have been permitted if oral examination in chief would have been led by a party before any of the Court of law, then such arguments and submissions obviously could not have been allowed to be placed in the affidavit in lieu of examination in chief permitted by virtue of the amendment to Order XVIII of the Code of Civil Procedure, 1908 in the year 2002. If the submissions and the arguments are allowed to be forming part of an affidavit in lieu of examination in chief, the whole purpose of filing the affidavit in lieu of examination in chief would be defeated. A perusal of the aforesaid paragraphs clearly indicates that these depositions are legal submissions and are argumentative in nature and thus cannot be included in the affidavit in lieu of examination in chief. I am thus not inclined to accept the submission of the learned counsel for the plaintiffs that no part of such affidavit can be struck off by this Court.

11. This Court in case of Harish Loyalka & Anr. (supra) after considering the provisions of Order XVIII Rule 4 of the Code of Civil Procedure, 1908 and after considering the objectionable portions of the affidavit in lieu of examination in chief, has held that the portion which is irrelevant and argumentative or by way of submission cannot be permitted in the affidavit in lieu of examination in chief. In the said judgment also, this Court has directed the deponent of the affidavit to file a fresh affidavit in conformity with Order XVIII Rule 4 of the Code of Civil Procedure, 1908. The judgment of this Court in case of Rajendra Singh Chhatrasal Singh Kushwaha (supra) and Harish Loyalka & Anr. (supra) would squarely apply to the facts of this case. I am respectfully bound by the said judgment.

12. Insofar as the deposition in paragraph 30 of the affidavit in lieu of examination in chief is concerned, in my view, in the affidavit in lieu of examination of chief, the witness cannot be permitted to incorporate the entire plaint as part of affidavit of evidence and thus paragraph 30 also deserves to be deleted.

13. There cannot be any cross-examination of any arguments or legal submissions. Affidavit in lieu of examination to prove disputed questions of fact, documents and contents cannot be mixed up with written arguments and legal submissions.

14. Insofar as the submissions of the learned counsel for the plaintiff that there are no details of the alleged objectionable part of the affidavit in lieu of examination is concerned, before commencement of oral arguments, the learned counsel for t

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he defendant nos.4 to 6 marked the relevant portion of the affidavit in lieu of examination in chief of the plaintiff and furnished a copy thereof to the learned counsel for the plaintiff. The matter was thereafter kept back thrice at the request of the learned counsel for the plaintiff to take instructions. There is thus no substance in this submission of the learned counsel for the plaintiff. 15. I therefore, pass the following order:- a). The deposition in paragraphs 21, 22, 24 to 28 and 30 are directed to be deleted. Insofar as paragraph 23 is concerned, the sentence starting from “Therefore, the so called Development Agreement …......... deserves to be sustained in the eyes of law” stands deleted. The defendants are not required to cross-examine the witness of the plaintiff on those paragraphs which are deleted by this order. b). The chamber summons is allowed in aforesaid terms. c). There shall be no order as to costs.
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