Case Note & Summary
The Plaintiffs filed a suit for specific performance of a contract based on an unsigned MOU. The Defendant filed a written statement after a delay of 465 days, which was condoned. During trial, the Defendant filed an affidavit of evidence containing paragraphs 7 and 8 that the Plaintiffs objected to, claiming they introduced new facts not in the written statement. The Plaintiffs took out a Chamber Summons under Order 6 Rule 16 CPC to strike out those paragraphs. The court examined whether an affidavit of evidence is a pleading and whether it can be struck out under Order 6 Rule 16. The court held that an affidavit of evidence is not a pleading as defined under Order 6 Rule 1 CPC; it is a mode of giving evidence under Order 18 Rule 4. Therefore, Order 6 Rule 16, which allows striking out of pleadings, does not apply. The court also noted that the averments in paragraphs 7 and 8 did not introduce a new case but merely elaborated on the defence already taken. The Plaintiffs had cross-examined the Defendant and could not claim prejudice. The Chamber Summons was dismissed with costs.
Headnote
A) Civil Procedure - Pleadings - Affidavit of Evidence - Order 6 Rule 16 CPC - The court held that an affidavit of evidence is not a pleading and therefore cannot be struck out under Order 6 Rule 16 CPC, which applies only to pleadings. The chamber summons seeking to strike out paragraphs 7 and 8 of the Defendant's affidavit of evidence was dismissed. (Paras 1-10) B) Civil Procedure - Affidavit of Evidence - New Averments - Order 18 Rule 4 CPC - The court held that averments not found in the written statement may be included in the affidavit of evidence if they do not introduce a new case or cause prejudice to the other party. The Defendant's affidavit of evidence did not introduce a new case and the Plaintiffs had ample opportunity to cross-examine. (Paras 7-10)
Issue of Consideration
Whether an affidavit of evidence can be struck out under Order 6 Rule 16 of the Code of Civil Procedure, 1908, and whether paragraphs 7 and 8 of the Defendant's affidavit of evidence, which contain averments not found in the written statement, should be struck out.
Final Decision
The Chamber Summons is dismissed with costs. The Defendant is entitled to costs quantified at Rs. 5,000/-.
Law Points
- Affidavit of evidence is not a pleading
- Order 6 Rule 16 CPC applies only to pleadings
- striking out affidavit of evidence is not permissible
- averments not in written statement may be allowed if they do not introduce a new case or cause prejudice
- specific performance suit
- chamber summons
- Order 6 Rule 16
- Order 18 Rule 4 CPC
