Introduction

The case of Banganga Cooperative Housing Society Ltd. v. Vasanti Gajanan Nerurkar decided by the Bombay High Court on June 15, 2015, addresses critical procedural aspects concerning the use of affidavits in lieu of examination-in-chief under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 (“CPC”). This case consolidates two suits, both differing in their chronological context but united by the central legal question: the authority of courts over affidavits submitted as evidence, specifically their withdrawal and admissibility. The parties involved include both plaintiffs and defendants represented by learned counsels who debated the procedural and substantive implications of utilizing affidavits instead of direct witness examination.

Summary of the Judgment

The Bombay High Court examined two separate suits where the core issue revolved around the use of affidavits as evidence, particularly focusing on whether such affidavits could be withdrawn or parts of them could be deleted if deemed inadmissible. In the first suit, the plaintiff's counsel proposed not to present the plaintiff for cross-examination due to the plaintiff's old age, implicitly challenging the necessity and flexibility of using affidavits. In the second suit, the plaintiff sought permission to withdraw an already filed affidavit, raising questions about the permissibility and consequences of such an act. The court meticulously analyzed relevant precedents, statutory provisions, and the interplay between procedural rules and substantive law to arrive at its decisions.

Ultimately, the court held that once an Evidence Affidavit is filed under Order XVIII Rule 4, it cannot be withdrawn. Moreover, the court established that affidavits must strictly contain admissible evidence; irrelevant or inadmissible material must be struck out or disregarded by the court. The judgment further elucidated the consequences of failing to present a witness for cross-examination after filing an affidavit, reinforcing the sanctity of the cross-examination process, a cornerstone of natural justice.

Analysis

Precedents Cited

The judgment extensively cited prior cases to underscore the legal framework surrounding Evidence Affidavits:

• FDC Limited v. Federation of Medical Representatives Association of India: Established that in appealable cases, affidavits are not considered evidence until the deponent confirms their contents in court.
• Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.: Reaffirmed the non-withdrawal of affidavits once filed, aligning with the principles set in FDC Limited.
• Rasiklal Manikchand Dhariwal v. MSS Food Products: Clarified that affidavits do constitute evidence upon affirmation and do not require re-confirmation in court unless contested.
• Shamrao Vishnu Kunjir v. Suresh Vishnu Kunjir: Highlighted that affidavits should be treated as evidence similar to direct testimony, adhering to relevance and admissibility norms.
• Krishan Dayal v. Chandu Ram: Supported the notion that evidence remains admissible even if a witness becomes unavailable, though its probative value may be assessed.
• Rajendra Singh, Chhatrasal Singh Kushwaha v. Mr. Jitendra Singh Rajendra Singh Kushwaha: Demonstrated the court’s authority to strike out irrelevant portions of an affidavit.

These precedents collectively built the foundation for the court's stance that affidavits, once affirmed, are integral to the evidence and cannot be casually withdrawn or altered without substantial justification.

Legal Reasoning

The court's legal reasoning hinged on harmonizing procedural rules with substantive law. Order XVIII Rule 4 facilitates the use of affidavits to expedite proceedings, especially when direct witness examination is impractical. However, the Evidence Act, 1872, mandates that evidence must be relevant and admissible, irrespective of its form. The High Court interpreted that affidavits fall within the ambit of the Evidence Act as they are intended to serve as examination-in-chief.

The court emphasized that:

• **Non-Withdrawal**: Once affirmed, affidavits cannot be withdrawn as they form part of the evidence.
• **Admissibility**: Affidavits must only contain relevant and admissible evidence. Irrelevant or inadmissible material should be struck out.
• **Cross-Examination**: The right to cross-examination is fundamental. If a witness does not appear for cross-examination, adverse inferences can be drawn, and parts of the affidavit may be treated as admissions.

The judgment meticulously balanced the need for procedural efficiency with the safeguards of natural justice, ensuring that the utilization of affidavits does not undermine the evidentiary standards required for fair trials.

Impact

This judgment sets a clear precedent regarding the handling of Evidence Affidavits under CPC Order XVIII Rule 4. Its implications are multifaceted:

• For Litigants: Parties must ensure that affidavits are meticulously prepared, as they cannot be withdrawn once filed. Any errors or irrelevant content must be addressed proactively through legal channels rather than seeking withdrawal.
• For Courts: Judicial officers are empowered to strike out inadmissible parts of affidavits, thereby maintaining the integrity of the evidence presented. This streamlines the trial process by focusing on relevant evidence.
• Procedural Adjustments: The decision encourages better synchronization between procedural rules and the realities of court dockets, emphasizing the necessity for adherence to substantive evidence laws even within procedural frameworks.
• Future Cases: The affirmation that affidavits cannot be withdrawn will influence how future litigations handle witness availability and the submission of evidence, potentially reducing frivolous attempts to alter evidence post-filing.

Complex Concepts Simplified

Affidavit in Lieu of Examination-in-Chief

An affidavit in lieu of examination-in-chief is a written statement submitted under oath by a witness, detailing their testimony, which serves as the initial presentation of evidence in a trial. This method is used to expedite proceedings by avoiding the need for the witness's physical presence during the examination-in-chief.

Order XVIII Rule 4 of CPC

This rule governs the use of affidavits for the examination of witnesses instead of their live testimony. It outlines how affidavits should be filed, exchanged between parties, and incorporated into the trial record, ensuring that evidence is presented systematically and efficiently.

Examination-in-Chief

This is the initial questioning of a witness by the party that called them to testify. The purpose is to elicit relevant facts to support the party's case. When replaced by an affidavit, the witness submits their testimony in written form.

Cross-Examination

After the examination-in-chief, the opposing party has the opportunity to question the witness to challenge their testimony, clarify ambiguities, and test the accuracy and reliability of the evidence provided.

Adverse Inference

This is a legal inference or conclusion that a court may draw from a party’s failure to produce evidence or a witness for cross-examination. It often operates against the party responsible for the absence, potentially weakening their position.

Hearsay Evidence

Information presented by a witness that a statement was made outside of the courtroom and is being offered to prove the truth of the matter asserted, rather than the fact that the statement was made. Generally, hearsay is inadmissible unless it falls under specific exceptions.

Conclusion

The judgment in Banganga Cooperative Housing Society Ltd. v. Vasanti Gajanan Nerurkar significantly clarifies the procedural and substantive boundaries governing the use of Evidence Affidavits under Order XVIII Rule 4 of the CPC. By unequivocally stating that affidavits cannot be withdrawn once filed and must strictly contain admissible evidence, the court reinforces the principles of natural justice and evidentiary integrity. This decision not only streamlines the trial process by preventing frivolous alterations of evidence but also upholds the essential right to cross-examination, ensuring fairness and reliability in judicial proceedings. The meticulous analysis and reaffirmation of existing precedents provide a robust framework for future litigations, promoting consistency and adherence to legal standards in the handling of affidavits as evidence.