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The 1st defendant to the suit and the plaintiff to the counter-

claim, Mr. Nevatia, has filed a further affidavit dated 10th March 2014 in lieu of examination in chief. Substantial portions of this affidavit, notably from the fourth line of paragraph 12 to the end of that paragraph, and from paragraph 14 onwards are in the nature of submissions, arguments and not in the nature of evidence. Mr. Joshi, learned senior counsel for the plaintiffs to the suit is justified in his contention that he ought not to be required to cross-examine Mr. Nevatia on these submissions as they are not testimony.

3. Can a court order the deltion of portions of an evidence affidavit? Can it direct that portions of that affidavit are, either on the grounds of relevancy or admissibility or both, liable to be expunged from the record or excluded from consideration or, at any rate, ignored without fear of consequence in cross-examination?

Mr. Nevatia would have it, on the strength of considerable precedent, that a court cannot, and that it has no such power. His submission is that an evidence affidavit, regardless of what it contains, is inviolate. It may contain hearsay material. It may contain all manner of irrelevant material, directed neither to facts in issue nor to relevant facts. It may also contain inadmissible matter, such as statements in the nature of submissions, arguments and traverses of pleadings. All this, Mr. Nevatia says, is his 'evidence', and must be left untouched.

6. The decision in Harakchand Gulabchand Dhoka is also of no assistance to Mr. Nevatia. There, too, the Court was dealing with the issue of relevancy and of material sought to be introduced in the evidence affidavit but without a foundation being laid in pleadings.

7. Before the Harakchand Dhoka Court, reliance was placed on a decision of another learned Single Judge of this Court in Cesar Rego Fernandes & Ors. v Angela Ninette Oliveira Fernandes & Ors.5 Before the writ court in Cesar Rego Fernandes, the challenge was to an order by which the Civil Judge directed deletion of certain portions of the affidavit in evidence, again on the footing that there was no foundation laid for these statements in the pleadings. The case was decided on this narrow issue of relevancy. For the same reasons that I have discussed earlier, this decision does not advance Mr. Nevatia's cause.

26. Mr. Nevatia agrees to substitute the additional affidavit of 10th March 2014 by one that is in conformity with the provisions of Order 18 and Order 19 of the CPC and the Evidence Act.

27. I will now consider Mr. Nevatia's affidavit in lieu of examination-in-chief dated 27th August 2010. This affidavit is in two parts. The first is, supposedly, his examination-in-chief as the defendant to the suit; and the second part is purportedly in support of his counter-claim. Ex-facie, a large part of this affidavit is argumentative and conjectural. Many portions of it are in the nature of inadmissible, hearsay evidence. Some portions of it purport to be oral testimony of documents already marked as exhibits.