Case Note & Summary
The petitioner, Mr. Desmond Joseph Therakan and others, filed a suit for specific performance against Dolphin Developers based on a development agreement dated 29/12/2010. During the suit, the respondent/defendant tendered an affidavit of examination-in-chief. The petitioner contended that this affidavit contained evidence contrary to and beyond the pleadings in the written statement, and filed an application (Exhibit-161) seeking to discard the affidavit before the defendant entered the witness box. The trial court rejected the application, observing that objections regarding evidence beyond pleadings could be raised at the final hearing. Aggrieved, the petitioner filed the present writ petition. The petitioner argued that under Order 18 Rule 4 CPC, evidence must be supported by pleadings, and relied on Kalyan Singh Chouhan v. C.P. Joshi and several Bombay High Court judgments to submit that evidence without pleadings should be ignored. The respondent countered that there were supporting pleadings and that the court could discard inadmissible evidence at the final stage. The High Court considered the rival submissions and referred to the Supreme Court's decision in Ameer Trading Corporation Ltd v. Shapoorji Data Processing Ltd, which held that objections to statements in affidavits beyond pleadings can be taken in writing and considered at the appropriate stage, and that Order 18 Rules 4 and 5 must be harmoniously construed. The court also noted the Bombay High Court's decision in Mahabanoo Navroz Kotwal v. Piloo Fali Bomanji, which held that the trial court can direct deletion of irrelevant parts or ignore such evidence. The court found that the trial court had already safeguarded the petitioner's interest by reserving the right to raise objections at the final hearing. It further observed that it was difficult at this stage to determine whether the affidavit actually went beyond the pleadings. Consequently, the court dismissed the petition, holding that no interference was warranted under extraordinary jurisdiction.
Headnote
A) Civil Procedure - Evidence Beyond Pleadings - Discarding Affidavit of Examination-in-Chief - Order 18 Rule 4, Order 18 Rule 5, Code of Civil Procedure, 1908 - The petitioner sought to discard the respondent's affidavit of examination-in-chief on the ground that it contained evidence beyond the pleadings in the written statement. The trial court rejected the application, holding that objections could be raised at the final hearing. The High Court upheld this view, noting that the Apex Court in Ameer Trading Corporation Ltd v. Shapoorji Data Processing Ltd held that objections to statements beyond pleadings can be taken in writing and considered at the appropriate stage. The court also relied on Mahabanoo Navroz Kotwal v. Piloo Fali Bomanji, which held that the trial court can direct deletion of irrelevant parts or ignore such evidence. Held that the petitioner's interest was safeguarded by the impugned order, and no interference was warranted (Paras 8-11). B) Civil Procedure - Pleadings - Object and Purpose - Order 6, Code of Civil Procedure, 1908 - The court reiterated that the object of pleadings is to enable the adversary to know the case it has to meet. Evidence beyond pleadings cannot be considered, and a party cannot be permitted to travel beyond the pleadings. This principle was affirmed in Kalyan Singh Chouhan v. C.P. Joshi, though that case dealt with election petitions and the strictness of statutory requirements (Para 10).
Issue of Consideration
Whether an affidavit of examination-in-chief that allegedly contains evidence beyond the pleadings can be discarded before the witness enters the box, and whether the trial court's refusal to do so warrants interference under writ jurisdiction.
Final Decision
The writ petition is dismissed. The trial court's order rejecting the application to discard the affidavit of examination-in-chief is upheld, with the observation that the petitioner's objections can be raised at the final hearing.
Law Points
- Evidence beyond pleadings can be objected to at final hearing
- Order 18 Rule 4 CPC
- Order 18 Rule 5 CPC
- Affidavit evidence
- Pleadings and proof
