Case Note & Summary
The petitioner, Harakchand Gulabchand Dhoka, filed a suit for specific performance of an agreement of sale against the respondent, Kashinath Narsingh Marathe. After the petitioner adduced evidence, the respondent filed an affidavit in lieu of examination-in-chief. The petitioner filed an application at Exhibit 76 objecting to certain portions of the affidavit as inadmissible. The trial court, by order dated 7th November 2009, struck down those portions. The petitioner challenged this order under Article 227 of the Constitution of India. The High Court held that the trial court's approach was erroneous. The proper stage for deciding objections to admissibility of evidence is at the time of final arguments, not during the recording of evidence. The court set aside the impugned order and directed the trial court to proceed with the cross-examination of the defendant without striking out the portions. The court also directed the trial court to decide the objections at the stage of final arguments.
Headnote
A) Civil Procedure - Admissibility of Evidence - Stage for Objections - Order 18 Rule 17 CPC, Section 138 Evidence Act - The trial court struck down portions of the defendant's examination-in-chief affidavit during cross-examination, which was held to be premature. The proper stage for deciding objections to admissibility of evidence is at the time of final arguments, not during the recording of evidence. The court set aside the impugned order and directed the trial court to proceed with cross-examination without striking out the portions. (Paras 1-5) B) Civil Procedure - Examination-in-Chief - Affidavit in Lieu - Order 18 Rule 4 CPC - The defendant filed an affidavit in lieu of examination-in-chief. The plaintiff objected to certain portions as inadmissible. The trial court struck down those portions. The High Court held that such objections should be decided at the final stage, not during cross-examination. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in striking down certain portions of the defendant's examination-in-chief affidavit at the stage of cross-examination, and whether the proper stage for deciding objections to admissibility of evidence is at the time of final arguments.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 7th November 2009, and directed the trial court to proceed with the cross-examination of the defendant without striking out the portions. The trial court was directed to decide the objections to admissibility at the stage of final arguments.
Law Points
- Objections to admissibility of evidence must be decided at the stage of final arguments
- not during cross-examination
- Order 18 Rule 17 CPC
- Section 138 Evidence Act
