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:
- 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.
- 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.
- 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
