I am of the view that paragraphs 3 and 4 of the affidavit in lieu of
examination in chief which refers to the address alleged to be correct address
according to the defendant of the deceased is not relevant to the issue. What
is deposed in paragraph 13 to 17 which dealt with the power of the testator
to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant
to the issues involved and which the court cannot decide.
17. I, therefore, pass the following order :
(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in
lieu of examination in chief dated 18th March, 2013, being not relevant to the
issue will not be read in evidence. Plaintiff is not required to cross examine
the defendant in respect of such deposition made in paragraph 3, 4 and 13 to
17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate
proceedings for adjudication of title before appropriate court.
(b) Both the parties are directed to proceed with evidence in respect of
the remaining paragraphs of the said affidavit expeditiously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
TESTAMENTARY & INTSTATE JURISDICTION
PETITION NO. 832 OF 2010
Late Shri. Rajendra Singh Chhatrasal Singh
Kushwaha alias Rajendra C. Kushwaha
Vs
4. Suresh Rajendra Singh Kushwaha,
CORAM : R.D.DHANUKA J.
PRONOUNCED ON : 29 OCTOBER, 2013
Citation; 2014(2) ALL M R132
Plaintiffs have filed an application for striking of the order deleting
paragraph 3, 4, 13 to 17 from the affidavit dated 18th March, 2013 filed by
the defendant/caveator filed in lieu of examination in chief.
Defendant/caveator has filed affidavit in reply to this application.
2. Mr. Shah, learned senior counsel appearing for the plaintiff
invited my attention to paragraphs 3, 4, 13 to 17 of the affidavit in lieu of
examination in chief filed by defendant on 18th March, 2013. The learned
senior counsel also invited my attention to the issues framed by this court on
23rd August, 2012. The Testamentary petition was filed by the executor in
this court inter alia praying for probate in respect of the alleged will and
testament dated 10th May, 2006. This court has framed the following issues :
1. Whether the last Will and testament of the deceased, Rajendra Singh
Chhatrasal Singh dated 10th May, 2006 was validly executed.
2. Whether the deceased was in sound state of mind at the time of
execution of the Will.
3. What relief, if any, is the plaintiff entitled to?
3. Learned senior counsel submits that by an order dated 23rd August,
2012 read with order dated 23rd January, 2013, plaintiff has been permitted
to lead evidence in rebuttal if required. Evidence of two additional witnesses
is complete. Learned senior counsel submits that in paragraph 3 and 4 of the
affidavit in lieu of examination in chief filed by the defendant, it is deposed by
defendant that the deceased parents were also staying with the plaintiffs
at Santacruz address since 1982 and not at the address mentioned by the
plaintiff. Learned senior counsel submits that paragraph 3 and 4 of the said
affidavit are not relevant or material in any manner for deciding the petition
for probate. Whether the said deceased was staying at the address
mentioned by the plaintiff or at the address mentioned by the defendant is
irrelevant for the purpose of deciding whether the said deceased had validly
executed the Will and testament dated 10th May, 2006 or whether he was in
sound state of mind at the time of execution of the Will. Learned senior
counsel submits that similarly in paragraphs 13 to 17 of the affidavit in lieu
of examination in chief, defendant has raised dispute in respect of certain
properties which according to defendant, the said deceased could not have
bequeathed. He submits that the issue of title cannot be decided by this court
in testamentary proceedings and thus evidence if any on the issue of title
would not be relevant or material in any manner for deciding the probate
petition/testamentary suit. Mr. Shah submits that this legal position is not in
dispute.
4. Mr. Shah learned senior counsel placed reliance on Order 18 Rule 2 of
the Code of Civil Procedure, 1908 in support of his submission that evidence
has to be led in support of the issues which the party is bound to prove and
not on any other irrelevant issues. Learned senior counsel submits that the
dispute about address of the said deceased or whether the said deceased
could have bequeathed some of the properties as mentioned in the affidavit in
lieu of examination in chief, are not the issues in respect of which evidence
can be led by the defendant. It is submitted that since all these
paragraphs referred to aforesaid are not relevant in support of the issues
involved, these paragraphs are required to be struck off at this stage. It is
submitted that if this part of evidence which is not relevant is not struck of,
there will be unnecessary lengthy cross examination of the defendant which
would not be in the interest of any party. Order 18 Rule 2 and 4 of the Code
of Civil Procedure read thus :
“2. Statement and production of evidence. (1) On the day fixed for
the hearing of the suit or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and
produce his evidence in support of the issues which he is bound to
prove.
(2) The other party shall then state his case and produce his evidence
(if any) and may then address the court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(3A) Any party may address oral arguments in a case, and shall before
he concludes the oral arguments, if any, submit if the Court so permit
concisely and under distinct headings written arguments in support of
his case to the Court and such written arguments shall form part of the
record.
(3B) A copy of such written arguments shall be simultaneously
furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the
written arguments unless the Court, for reasons to be recorded in
writing considers it necessary to grand such adjournment.
(3D) The Court shall fix such timelimits for the oral arguments by
either of the parties in a case, as it thinks fit.
4 Recording of evidence. (1) In every case, the examinationinchief
of a witness shall be on affidavit and copies thereof shall be supplied to
the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents which are
files along with affidavit shall be subject to the orders of the Court.
(2) The evidence (crossexamination and reexamination) of the
witness in attendance, whose evidence (examinationinchief) by
affidavit has been furnished to the Court, shall be taken either by the
Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this
subrule, consider taking into account such relevant factors as it thinks
fit:
(3) The Court or the Commissioner, as the case may be shall record
evidence either in writing or mechanically in the presence of the Judge
or of the Commissioner, as the case may be, and where such evidence
is recorded by the Commissioner he shall return such evidence
together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the
record of the suit.
(4) The Commissioner may record such remarks as it thinks material
respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence
before the Commissioner shall be recorded by him and decided by the
Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court
appointing the commission within sixty day from the date of issue of the
commission unless the Court for reasons to be recorded in writing
extends the time.
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of Commissioners to record the evidence under this
rule.
(7) The Court may by general or special order fix the amount to be
paid as remuneration for the services of the Commissioner.
(8) The provision of rules 16, 16A, 17 and 18 of Order XXVI, in so far
as they are applicable, shall apply to the issue, execution and return of
such commissions under this rule.”
5. Mr. Khandeparkar, learned counsel appearing on behalf of the
defendant on the other hand submits that the application filed by the plaintiff
for striking of the defence is not maintainable. Reliance is placed on Rule
121 (5) and 125(38) of the Bombay High Court (Original Side) Rules, in
support of his submission that the applicants ought to have filed chamber
summons and not such application by way of affidavit. Learned counsel
submits that there is no provision for striking of the evidence under Order 18
Rule 2 or Order 18 Rule 4. Learned counsel placed reliance on Order 19
Rule 3 and submits that the defendant has personal knowledge to prove
what is deposed in the affidavit in lieu of examination in chief. It is
submitted in the event of this court coming to the conclusion that any matter
whether hearsay or argumentative matter is referred in the affidavit, this
court can impose cost which can be considered only after entire evidence is
completed and this court can not strike of any part of evidence at this stage.
Learned counsel submits that this court has no power to strike of portion of
the affidavit.
6. Mr. Khandeparkar placed reliance on Rule 206 of the High Court
(Original Side) Rules and submits that the court or Judge in chambers may
order to be struck out from any affidavit any matter which is scandalous and
may order the cost of any application to strike out such mater to be paid as
between Advocate and client. Mr. Khandeparkar, learned counsel submits
that in so far as the deposition made in para 3 and 4 in affidavit in lieu of
examination in chief is concerned, the deponent of the affidavit has placed
substantial evidence on record about the correct residential address of the
said deceased at the time of his death to demonstrate that the plaintiff
prevailed upon the deceased testator to execute the Will in question by
bequeathing the property in favour of the party executing the Will. It is
submitted that paragraphs 3 and 4 would indicate the conduct of the said
deceased and the plaintiff and are thus relevant for the purpose of deciding
the issue.
7. As far as depositions made in paragraphs 12 to 17 of the affidavit
in lieu of examination in chief is concerned, the learned counsel submits that
even in paragraph 12 of the affidavit in lieu of examination in chief, the
witness has deposed that the said deceased cannot be bequeathed the
ancestral property by Will. It is submitted that though in paragraphs 13 to 17
also the defendant has raised similar objection regarding the rights of the
said deceased to bequeath by Will various other properties, Plaintiff seeks
striking of the evidence laid in paragraph 13 to 17 of the said affidavit.
Learned counsel submits that what is stated in paragraph 13 to 17 was out of
depositions made in paragraph 12. Reliance is placed on Section 136 of the
Indian Evidence Act, 1871 by the learned counsel and would submit that it
is for the court to decide as to admissibility of evidence after entire evidence
is over and not at this stage. If the court comes to the conclusion that certain
part of the evidence is not relevant, the same can be ignored or struck off at
that stage. It is submitted that any part of the said affidavit can not be
considered as irrelevant at this stage and thus cannot be struck of in view of
section 136 of the Indian Evidence Act. Section 136 of the Indian Evidence
Act reads thus :
“136. Judge to decide as to admissibility of evidence. When
either party proposes to give evidence of any fact, the Judge
may ask the party proposing to give the evidence in what
manner the alleged fact, if proved, would be relevant; and the
Judge shall admit the evidence if he thinks that the fact, if
proved, would be relevant, and not otherwise. If the fact
proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last mentioned fact
must be proved before evidence is given of the fact first
mentioned, unless the party undertakes to give proof of such
fact, and the Court is satisfied with such undertaking. If the
relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either
permit evidence of the first fact to be given before the second
fact is proved, or require evidence to be given of the second fact
before evidence is given of the first fact. ”
8. Mr. Shah, learned senior counsel for the plaintiff in rejoinder
submits that Rule 121(5) of the Bombay High Court (Original Side) Rules,
would apply if an application is made to amend the plaint or subsequent
proceeding or to strike out any matter therein, the same has to be disposed of
by the Judge in chambers. Learned senior counsel submits that affidavit in
lieu of examination in chief is not pleadings but is evidence. It is submitted
that Rule 121(5) thus does not apply. As far as Rule 121(38) is concerned,
learned senior counsel submits that the matters which are not expressly
required to be disposed of in court and which Judge thinks fit to be heard in
chambers, such applications can be directed to be heard in chambers by the
learned Judge. He submits that the said rule also will not apply to the facts of
this case. It is submitted that the plaintiff has already filed an application.
It is submitted that the objections raised by the defendant is hyper
technical. It is submitted that Rule 121 does not apply to striking of the
evidence. In any event, under Section 151 of Code of Civil procedure, 1908,
this court has inherent power to consider such application. It is submitted
that order 18 rule 2 of Code of Civil Procedure does not curtail the powers
of the court under section 136 of the Indian Evidence Act. It is submitted
that the plea raised about the address of the deceased in the affidavit in lieu
of examination in chief is not raised in the affidavit in support of caveat and
cannot be allowed to be raised for the first time in affidavit of evidence.
Learned senior counsel submits that as far as depositions made in paragraph
12 which is not objected by the plaintiff, as to whether bequest could be
made as to whether bequest could be made by the said deceased in respect of
the ancestral property is concerned, in paragraph 12 of the said affidavit,
deponent has also alleged that the Will was executed under pressure
and/or undue influence, exercised or practiced upon the deceased by Plaintiff
no. 1. It is submitted that since part of the evidence deposed in paragraph
12 is relevant to the issue, plaintiff rightly did not raise any objection in
respect of the entire paragraph.
9. On perusal of the issues framed by this court, it is clear that the
issues which are required to be proved by the parties is limited to the
execution of the Will and as to whether deceased was in sound state of mind
at the time of execution of the Will. This court while exercising the
testamentary jurisdiction cannot decide the title in respect of the properties
of the deceased or any third party in this testamentary suit. On perusal of
paragraphs 13 to 17 of the affidavit in lieu of examination, it is clear that
defendant has alleged that various properties described therein were
ancestral properties and such properties cold not have been bequeathed by
the deceased testator by Will. Defendant also has set up adverse title in the
said properties. In my view since this court cannot decide the title in respect
of the properties of the deceased or third party, while exercising
testamentary jurisdiction deposition made in paragraphs 13 to 17 of the
affidavit in lieu of examination in chief disputing the title to the properties of
the deceased or his power to bequeath the property by Will, are not relevant
to the issue framed in this suit and thus no evidence on such allegation made
by the defendant can be laid.
12. As far as deposition made in paragraph 12 of the affidavit in lieu
of examination in chief is concerned, on perusal of the said paragraph, it is
clear that defendant has not only submitted that the deceased cannot
bequeath the ancestral property as the same were not self acquired properties
of the deceased, but has also alleged that the Will was not executed or the
deceased was under pressure and/or undue influence which was alleged to
have been exercised or practiced on the deceased by the plaintiff. In my
view, Mr. Shah, learned senior counsel for the plaintiff is right that in view of
the dispute about the validity of Will having been raised along with title
issue, Plaintiff did not raise objection for striking part of paragraph no. 12.
Even if plaintiff has not applied for striking of the portion of paragraph 12, it
would not mean that what is deposed in paragraph Nos. 13 to 17 would be
relevant to the issue in testamentary proceedings. In my view, there is no
merit in this submission of Mr. Khandeparkar, learned counsel for the
defendant.
12. As far as deposition made in paragraph 3 and 4 of the affidavit
are concerned, on perusal of the said paragraphs, it is clear that the
allegations of the defendant is that the deceased was staying with plaintiff
at Santacruz address since 1982 and not at the address mentioned in the
plaint. In my view whether the said deceased was staying at Santacruz or at
Kalbadevi is not relevant for the purpose of deciding whether the Will was
validly executed or not or whether the deceased was in sound state of mind
at the time of execution of the Will and thus both these paragraphs are not
relevant to the issues involved.
13. On perusal of Order 18 Rule 2 of the Code of Civil Procedure, it is
clear that the party is 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 the party is relevant in support of the issues involved.
Only such evidence which is relevant in support of the issues, the party is
bound to prove such issue. Any evidence which is not relevant to the issues
involved, can be considered irrelevant. There was an amendment to Order
18 Rule 4 of the Code of Civil Procedure, 1908 by which examination in
chief of the witness is allowed to be filed on affidavit. The legislative intent to
permit examination in chief of the witness by filing affidavit was to expediate
the trial. The question that arises for consideration of this court is if there
was no such amendment permitting the party to file affidavit in lieu of
examination in chief of the witnesses and if the oral examination of the
party who seeks to lead oral evidence was required to be recorded in the
court, whether court could have permitted the party in examination in chief to
lead any evidence which was not relevant to the issue. In my view, the court
could not have permitted or would have stopped the party from leading
evidence in examination in chief to the issue which were not relevant for the
purpose of deciding the suit. The court cannot permit the party to lead an
irrelevant evidence or evidence not related to the issue even in affidavit
filed by way of examination in chief in lieu of oral evidence. Order 18 rule 4
in my view has to be read with Order 18 rule 2 which clearly provides that
evidence has to be in support of the issues which party is bound to prove. In
my view, since the defendant is not bound to prove nor it is relevant in the
testamentary proceedings that the deceased who was alleged to have
bequeathed particular property was not owner of the said property such
part of evidence is irrelevant and can not be permitted by Court. If the court
could not have permitted the defendant to lead such evidence as not related
to the issue involved under Order 18 rule 2, the court cannot permit the said
party to lead evidence not related to the issue involved or the issue which the
party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of
examination in chief.
14. As far as maintainability of this Chamber summons is concerned,
on perusal of Rule 121 (5) and 121(38), in my view, since 121(5) applies to
the pleadings and not to evidence, such rule will not apply to the application
filed by the plaintiff for striking of the part of the evidence. As far as rule
121(38) is concerned, that gives discretionary power to the court to dispose
of the matters which are not expressly required to be disposed of in the
court by hearing the same in chambers. The said rule also does not apply to
such application. In my view, section 151 of the Code of Civil Procedure,
1908, gives inherent powers to the court to strike of the irrelevant evidence at
this stage with a view to avoid any further delay in the matter and to avoid
any cross examination on irrelevant issues. In my view, part of the evidence
which is on the face of it irrelevant and not relevant to the issue involved or
issue which the court ultimately cannot decide, can be struck of and/or can
be ignored even before commencement of cross examination.
15. As far as submission of Mr. Khandeparkar that the court has to
decide the admissibility of evidence at the stage of final arguments and not at
this stage under section 136 of the Indian Evidence Act is concerned, in my
view on plain reading of section 136 of the Indian Evidence Act, it is clear that
at the stage when the party proposes to give any evidence on any fact, the
court is empowered to ask such party who is proposing to give evidence,
in what manner the alleged fact if proved would be relevant and the court
shall admit the evidence, if it deems that fact if proved would be relevant and
not otherwise. The court is thus empowered to consider whether to admit the
evidence which would be relevant and not otherwise. In my view, there is no
substance in the submissions made by Mr.Khandeparkar learned counsel for
the defendant.
16. I am of the view that paragraphs 3 and 4 of the affidavit in lieu of
examination in chief which refers to the address alleged to be correct address
according to the defendant of the deceased is not relevant to the issue. What
is deposed in paragraph 13 to 17 which dealt with the power of the testator
to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant
to the issues involved and which the court cannot decide.
17. I, therefore, pass the following order :
(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in
lieu of examination in chief dated 18th March, 2013, being not relevant to the
issue will not be read in evidence. Plaintiff is not required to cross examine
the defendant in respect of such deposition made in paragraph 3, 4 and 13 to
17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate
proceedings for adjudication of title before appropriate court.
(b) Both the parties are directed to proceed with evidence in respect of
the remaining paragraphs of the said affidavit expeditiously.
(c) Application is disposed of in the aforesaid terms. There shall be no
order as to costs.
(R.D.DHANUKA, J.)
Print Page
examination in chief which refers to the address alleged to be correct address
according to the defendant of the deceased is not relevant to the issue. What
is deposed in paragraph 13 to 17 which dealt with the power of the testator
to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant
to the issues involved and which the court cannot decide.
17. I, therefore, pass the following order :
(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in
lieu of examination in chief dated 18th March, 2013, being not relevant to the
issue will not be read in evidence. Plaintiff is not required to cross examine
the defendant in respect of such deposition made in paragraph 3, 4 and 13 to
17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate
proceedings for adjudication of title before appropriate court.
(b) Both the parties are directed to proceed with evidence in respect of
the remaining paragraphs of the said affidavit expeditiously.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
TESTAMENTARY & INTSTATE JURISDICTION
PETITION NO. 832 OF 2010
Late Shri. Rajendra Singh Chhatrasal Singh
Kushwaha alias Rajendra C. Kushwaha
Vs
4. Suresh Rajendra Singh Kushwaha,
CORAM : R.D.DHANUKA J.
PRONOUNCED ON : 29 OCTOBER, 2013
Citation; 2014(2) ALL M R132
Plaintiffs have filed an application for striking of the order deleting
paragraph 3, 4, 13 to 17 from the affidavit dated 18th March, 2013 filed by
the defendant/caveator filed in lieu of examination in chief.
Defendant/caveator has filed affidavit in reply to this application.
2. Mr. Shah, learned senior counsel appearing for the plaintiff
invited my attention to paragraphs 3, 4, 13 to 17 of the affidavit in lieu of
examination in chief filed by defendant on 18th March, 2013. The learned
senior counsel also invited my attention to the issues framed by this court on
23rd August, 2012. The Testamentary petition was filed by the executor in
this court inter alia praying for probate in respect of the alleged will and
testament dated 10th May, 2006. This court has framed the following issues :
1. Whether the last Will and testament of the deceased, Rajendra Singh
Chhatrasal Singh dated 10th May, 2006 was validly executed.
2. Whether the deceased was in sound state of mind at the time of
execution of the Will.
3. What relief, if any, is the plaintiff entitled to?
3. Learned senior counsel submits that by an order dated 23rd August,
2012 read with order dated 23rd January, 2013, plaintiff has been permitted
to lead evidence in rebuttal if required. Evidence of two additional witnesses
is complete. Learned senior counsel submits that in paragraph 3 and 4 of the
affidavit in lieu of examination in chief filed by the defendant, it is deposed by
defendant that the deceased parents were also staying with the plaintiffs
at Santacruz address since 1982 and not at the address mentioned by the
plaintiff. Learned senior counsel submits that paragraph 3 and 4 of the said
affidavit are not relevant or material in any manner for deciding the petition
for probate. Whether the said deceased was staying at the address
mentioned by the plaintiff or at the address mentioned by the defendant is
irrelevant for the purpose of deciding whether the said deceased had validly
executed the Will and testament dated 10th May, 2006 or whether he was in
sound state of mind at the time of execution of the Will. Learned senior
counsel submits that similarly in paragraphs 13 to 17 of the affidavit in lieu
of examination in chief, defendant has raised dispute in respect of certain
properties which according to defendant, the said deceased could not have
bequeathed. He submits that the issue of title cannot be decided by this court
in testamentary proceedings and thus evidence if any on the issue of title
would not be relevant or material in any manner for deciding the probate
petition/testamentary suit. Mr. Shah submits that this legal position is not in
dispute.
4. Mr. Shah learned senior counsel placed reliance on Order 18 Rule 2 of
the Code of Civil Procedure, 1908 in support of his submission that evidence
has to be led in support of the issues which the party is bound to prove and
not on any other irrelevant issues. Learned senior counsel submits that the
dispute about address of the said deceased or whether the said deceased
could have bequeathed some of the properties as mentioned in the affidavit in
lieu of examination in chief, are not the issues in respect of which evidence
can be led by the defendant. It is submitted that since all these
paragraphs referred to aforesaid are not relevant in support of the issues
involved, these paragraphs are required to be struck off at this stage. It is
submitted that if this part of evidence which is not relevant is not struck of,
there will be unnecessary lengthy cross examination of the defendant which
would not be in the interest of any party. Order 18 Rule 2 and 4 of the Code
of Civil Procedure read thus :
“2. Statement and production of evidence. (1) On the day fixed for
the hearing of the suit or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and
produce his evidence in support of the issues which he is bound to
prove.
(2) The other party shall then state his case and produce his evidence
(if any) and may then address the court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(3A) Any party may address oral arguments in a case, and shall before
he concludes the oral arguments, if any, submit if the Court so permit
concisely and under distinct headings written arguments in support of
his case to the Court and such written arguments shall form part of the
record.
(3B) A copy of such written arguments shall be simultaneously
furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the
written arguments unless the Court, for reasons to be recorded in
writing considers it necessary to grand such adjournment.
(3D) The Court shall fix such timelimits for the oral arguments by
either of the parties in a case, as it thinks fit.
4 Recording of evidence. (1) In every case, the examinationinchief
of a witness shall be on affidavit and copies thereof shall be supplied to
the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents which are
files along with affidavit shall be subject to the orders of the Court.
(2) The evidence (crossexamination and reexamination) of the
witness in attendance, whose evidence (examinationinchief) by
affidavit has been furnished to the Court, shall be taken either by the
Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this
subrule, consider taking into account such relevant factors as it thinks
fit:
(3) The Court or the Commissioner, as the case may be shall record
evidence either in writing or mechanically in the presence of the Judge
or of the Commissioner, as the case may be, and where such evidence
is recorded by the Commissioner he shall return such evidence
together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the
record of the suit.
(4) The Commissioner may record such remarks as it thinks material
respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence
before the Commissioner shall be recorded by him and decided by the
Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court
appointing the commission within sixty day from the date of issue of the
commission unless the Court for reasons to be recorded in writing
extends the time.
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of Commissioners to record the evidence under this
rule.
(7) The Court may by general or special order fix the amount to be
paid as remuneration for the services of the Commissioner.
(8) The provision of rules 16, 16A, 17 and 18 of Order XXVI, in so far
as they are applicable, shall apply to the issue, execution and return of
such commissions under this rule.”
5. Mr. Khandeparkar, learned counsel appearing on behalf of the
defendant on the other hand submits that the application filed by the plaintiff
for striking of the defence is not maintainable. Reliance is placed on Rule
121 (5) and 125(38) of the Bombay High Court (Original Side) Rules, in
support of his submission that the applicants ought to have filed chamber
summons and not such application by way of affidavit. Learned counsel
submits that there is no provision for striking of the evidence under Order 18
Rule 2 or Order 18 Rule 4. Learned counsel placed reliance on Order 19
Rule 3 and submits that the defendant has personal knowledge to prove
what is deposed in the affidavit in lieu of examination in chief. It is
submitted in the event of this court coming to the conclusion that any matter
whether hearsay or argumentative matter is referred in the affidavit, this
court can impose cost which can be considered only after entire evidence is
completed and this court can not strike of any part of evidence at this stage.
Learned counsel submits that this court has no power to strike of portion of
the affidavit.
6. Mr. Khandeparkar placed reliance on Rule 206 of the High Court
(Original Side) Rules and submits that the court or Judge in chambers may
order to be struck out from any affidavit any matter which is scandalous and
may order the cost of any application to strike out such mater to be paid as
between Advocate and client. Mr. Khandeparkar, learned counsel submits
that in so far as the deposition made in para 3 and 4 in affidavit in lieu of
examination in chief is concerned, the deponent of the affidavit has placed
substantial evidence on record about the correct residential address of the
said deceased at the time of his death to demonstrate that the plaintiff
prevailed upon the deceased testator to execute the Will in question by
bequeathing the property in favour of the party executing the Will. It is
submitted that paragraphs 3 and 4 would indicate the conduct of the said
deceased and the plaintiff and are thus relevant for the purpose of deciding
the issue.
7. As far as depositions made in paragraphs 12 to 17 of the affidavit
in lieu of examination in chief is concerned, the learned counsel submits that
even in paragraph 12 of the affidavit in lieu of examination in chief, the
witness has deposed that the said deceased cannot be bequeathed the
ancestral property by Will. It is submitted that though in paragraphs 13 to 17
also the defendant has raised similar objection regarding the rights of the
said deceased to bequeath by Will various other properties, Plaintiff seeks
striking of the evidence laid in paragraph 13 to 17 of the said affidavit.
Learned counsel submits that what is stated in paragraph 13 to 17 was out of
depositions made in paragraph 12. Reliance is placed on Section 136 of the
Indian Evidence Act, 1871 by the learned counsel and would submit that it
is for the court to decide as to admissibility of evidence after entire evidence
is over and not at this stage. If the court comes to the conclusion that certain
part of the evidence is not relevant, the same can be ignored or struck off at
that stage. It is submitted that any part of the said affidavit can not be
considered as irrelevant at this stage and thus cannot be struck of in view of
section 136 of the Indian Evidence Act. Section 136 of the Indian Evidence
Act reads thus :
“136. Judge to decide as to admissibility of evidence. When
either party proposes to give evidence of any fact, the Judge
may ask the party proposing to give the evidence in what
manner the alleged fact, if proved, would be relevant; and the
Judge shall admit the evidence if he thinks that the fact, if
proved, would be relevant, and not otherwise. If the fact
proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last mentioned fact
must be proved before evidence is given of the fact first
mentioned, unless the party undertakes to give proof of such
fact, and the Court is satisfied with such undertaking. If the
relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either
permit evidence of the first fact to be given before the second
fact is proved, or require evidence to be given of the second fact
before evidence is given of the first fact. ”
8. Mr. Shah, learned senior counsel for the plaintiff in rejoinder
submits that Rule 121(5) of the Bombay High Court (Original Side) Rules,
would apply if an application is made to amend the plaint or subsequent
proceeding or to strike out any matter therein, the same has to be disposed of
by the Judge in chambers. Learned senior counsel submits that affidavit in
lieu of examination in chief is not pleadings but is evidence. It is submitted
that Rule 121(5) thus does not apply. As far as Rule 121(38) is concerned,
learned senior counsel submits that the matters which are not expressly
required to be disposed of in court and which Judge thinks fit to be heard in
chambers, such applications can be directed to be heard in chambers by the
learned Judge. He submits that the said rule also will not apply to the facts of
this case. It is submitted that the plaintiff has already filed an application.
It is submitted that the objections raised by the defendant is hyper
technical. It is submitted that Rule 121 does not apply to striking of the
evidence. In any event, under Section 151 of Code of Civil procedure, 1908,
this court has inherent power to consider such application. It is submitted
that order 18 rule 2 of Code of Civil Procedure does not curtail the powers
of the court under section 136 of the Indian Evidence Act. It is submitted
that the plea raised about the address of the deceased in the affidavit in lieu
of examination in chief is not raised in the affidavit in support of caveat and
cannot be allowed to be raised for the first time in affidavit of evidence.
Learned senior counsel submits that as far as depositions made in paragraph
12 which is not objected by the plaintiff, as to whether bequest could be
made as to whether bequest could be made by the said deceased in respect of
the ancestral property is concerned, in paragraph 12 of the said affidavit,
deponent has also alleged that the Will was executed under pressure
and/or undue influence, exercised or practiced upon the deceased by Plaintiff
no. 1. It is submitted that since part of the evidence deposed in paragraph
12 is relevant to the issue, plaintiff rightly did not raise any objection in
respect of the entire paragraph.
9. On perusal of the issues framed by this court, it is clear that the
issues which are required to be proved by the parties is limited to the
execution of the Will and as to whether deceased was in sound state of mind
at the time of execution of the Will. This court while exercising the
testamentary jurisdiction cannot decide the title in respect of the properties
of the deceased or any third party in this testamentary suit. On perusal of
paragraphs 13 to 17 of the affidavit in lieu of examination, it is clear that
defendant has alleged that various properties described therein were
ancestral properties and such properties cold not have been bequeathed by
the deceased testator by Will. Defendant also has set up adverse title in the
said properties. In my view since this court cannot decide the title in respect
of the properties of the deceased or third party, while exercising
testamentary jurisdiction deposition made in paragraphs 13 to 17 of the
affidavit in lieu of examination in chief disputing the title to the properties of
the deceased or his power to bequeath the property by Will, are not relevant
to the issue framed in this suit and thus no evidence on such allegation made
by the defendant can be laid.
12. As far as deposition made in paragraph 12 of the affidavit in lieu
of examination in chief is concerned, on perusal of the said paragraph, it is
clear that defendant has not only submitted that the deceased cannot
bequeath the ancestral property as the same were not self acquired properties
of the deceased, but has also alleged that the Will was not executed or the
deceased was under pressure and/or undue influence which was alleged to
have been exercised or practiced on the deceased by the plaintiff. In my
view, Mr. Shah, learned senior counsel for the plaintiff is right that in view of
the dispute about the validity of Will having been raised along with title
issue, Plaintiff did not raise objection for striking part of paragraph no. 12.
Even if plaintiff has not applied for striking of the portion of paragraph 12, it
would not mean that what is deposed in paragraph Nos. 13 to 17 would be
relevant to the issue in testamentary proceedings. In my view, there is no
merit in this submission of Mr. Khandeparkar, learned counsel for the
defendant.
12. As far as deposition made in paragraph 3 and 4 of the affidavit
are concerned, on perusal of the said paragraphs, it is clear that the
allegations of the defendant is that the deceased was staying with plaintiff
at Santacruz address since 1982 and not at the address mentioned in the
plaint. In my view whether the said deceased was staying at Santacruz or at
Kalbadevi is not relevant for the purpose of deciding whether the Will was
validly executed or not or whether the deceased was in sound state of mind
at the time of execution of the Will and thus both these paragraphs are not
relevant to the issues involved.
13. On perusal of Order 18 Rule 2 of the Code of Civil Procedure, it is
clear that the party is 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 the party is relevant in support of the issues involved.
Only such evidence which is relevant in support of the issues, the party is
bound to prove such issue. Any evidence which is not relevant to the issues
involved, can be considered irrelevant. There was an amendment to Order
18 Rule 4 of the Code of Civil Procedure, 1908 by which examination in
chief of the witness is allowed to be filed on affidavit. The legislative intent to
permit examination in chief of the witness by filing affidavit was to expediate
the trial. The question that arises for consideration of this court is if there
was no such amendment permitting the party to file affidavit in lieu of
examination in chief of the witnesses and if the oral examination of the
party who seeks to lead oral evidence was required to be recorded in the
court, whether court could have permitted the party in examination in chief to
lead any evidence which was not relevant to the issue. In my view, the court
could not have permitted or would have stopped the party from leading
evidence in examination in chief to the issue which were not relevant for the
purpose of deciding the suit. The court cannot permit the party to lead an
irrelevant evidence or evidence not related to the issue even in affidavit
filed by way of examination in chief in lieu of oral evidence. Order 18 rule 4
in my view has to be read with Order 18 rule 2 which clearly provides that
evidence has to be in support of the issues which party is bound to prove. In
my view, since the defendant is not bound to prove nor it is relevant in the
testamentary proceedings that the deceased who was alleged to have
bequeathed particular property was not owner of the said property such
part of evidence is irrelevant and can not be permitted by Court. If the court
could not have permitted the defendant to lead such evidence as not related
to the issue involved under Order 18 rule 2, the court cannot permit the said
party to lead evidence not related to the issue involved or the issue which the
party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of
examination in chief.
14. As far as maintainability of this Chamber summons is concerned,
on perusal of Rule 121 (5) and 121(38), in my view, since 121(5) applies to
the pleadings and not to evidence, such rule will not apply to the application
filed by the plaintiff for striking of the part of the evidence. As far as rule
121(38) is concerned, that gives discretionary power to the court to dispose
of the matters which are not expressly required to be disposed of in the
court by hearing the same in chambers. The said rule also does not apply to
such application. In my view, section 151 of the Code of Civil Procedure,
1908, gives inherent powers to the court to strike of the irrelevant evidence at
this stage with a view to avoid any further delay in the matter and to avoid
any cross examination on irrelevant issues. In my view, part of the evidence
which is on the face of it irrelevant and not relevant to the issue involved or
issue which the court ultimately cannot decide, can be struck of and/or can
be ignored even before commencement of cross examination.
15. As far as submission of Mr. Khandeparkar that the court has to
decide the admissibility of evidence at the stage of final arguments and not at
this stage under section 136 of the Indian Evidence Act is concerned, in my
view on plain reading of section 136 of the Indian Evidence Act, it is clear that
at the stage when the party proposes to give any evidence on any fact, the
court is empowered to ask such party who is proposing to give evidence,
in what manner the alleged fact if proved would be relevant and the court
shall admit the evidence, if it deems that fact if proved would be relevant and
not otherwise. The court is thus empowered to consider whether to admit the
evidence which would be relevant and not otherwise. In my view, there is no
substance in the submissions made by Mr.Khandeparkar learned counsel for
the defendant.
16. I am of the view that paragraphs 3 and 4 of the affidavit in lieu of
examination in chief which refers to the address alleged to be correct address
according to the defendant of the deceased is not relevant to the issue. What
is deposed in paragraph 13 to 17 which dealt with the power of the testator
to bequeath the property alleged to be ancestral property in which defendant
has claimed rights are irrelevant to the issue. Since this court cannot decide
these issues in the testamentary proceedings, no purpose would be served by
allowing the witnesses to depose on these allegations which are not relevant
to the issues involved and which the court cannot decide.
17. I, therefore, pass the following order :
(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in
lieu of examination in chief dated 18th March, 2013, being not relevant to the
issue will not be read in evidence. Plaintiff is not required to cross examine
the defendant in respect of such deposition made in paragraph 3, 4 and 13 to
17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate
proceedings for adjudication of title before appropriate court.
(b) Both the parties are directed to proceed with evidence in respect of
the remaining paragraphs of the said affidavit expeditiously.
(c) Application is disposed of in the aforesaid terms. There shall be no
order as to costs.
(R.D.DHANUKA, J.)
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