Order 2

Order Details: Order below exhibit
Pdf Text: 1/8 OBE 12 in Comm. Suit 41/2019
ORDER BELOW EXHIBIT 12
IN
COMMERCIAL SUIT NO.41 OF 2019
CNR NO. : MHCC010060842019
Infobip India Private Limited ...Plaintiffs
Versus
Bhagyawan Manjarekar ….Defendant
Appearance:
Adv. Prashant Pophale h/f. Adv. Ganpat Monde for defendant.
Adv. Nihar Shaikh along with Adv. Dev Motta for Plaintiff.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 31st JANUARY, 2023
ORDER
This is an application filed by the defendant praying that
the affidavit of examinationinchief filed by the plaintiff be rejected.
According to the defendant, the plaintiff has filed the affidavit in lieu of
examinationinchief. On going through the verification, it has been
observed that, the verification does not conform with the provisions as
laid down under Order 19 Rule 3 which is similar to Order XI Rules 5
and 13 of Supreme Court Rules and even as laid down by the Criminal
Manual issued by the High Court of Judicature (Appellate Side) Bombay
for the Guidance of the Criminal Courts and their Subordinate Officers,
2009. If the verification is read in the aforesaid affidavit, it will reveal
that the prescribed requirements have not been complied with. It is
submitted by the defendant that an affidavit which does not comply
with the provisions of law and under the given Rules of Code of Civil
-- 1 of 9 --
2/8 OBE 12 in Comm. Suit 41/2019
Procedure, has no probative value and it is liable to be rejected. There
are some statements which are made on information which the
deponent should ought to have specified which is not done in the
present case. The defendant submitted that as per provisions of Civil
Procedure Code and the ruling of Hon'ble High Court of Bombay and
Hon'ble Supreme Court, the Affidavit of the plaintiff is liable to be
rejected. Hence, defendant prayed that the affidavit be rejected.
2. The plaintiff submitted say at Exh.13 and resisted the
application on the ground that the defendant has filed this application
with an intention to delay the trial and the recording of the evidence.
From mere perusal of affidavit, it is clear that the plaintiff's witness has
personal knowledge of all the paragraphs. Even in case of accidental
defects in the verification clause of affidavit, the same is curable defects
and affidavit in lieu of examination in chief cannot be rejected and the
Court has power to allow the party to cure the defect in the verification
clause. Order 19 Rule 3 of Code of Civil Procedure is not applicable in
the case of affidavit in lieu of examinationinchief. The
judgment/ruling relied by the defendant do not state that the affidavit
in lieu of examination in chief has to be verified in the manner required
as per Order VI Rule 15 of Code of Civil Procedure. The plaintiff
submitted that the plaintiff's witness may be given liberty to amend the
inadvertent defect in verification clause of the affidavit in examination
in chief. Hence, it is submitted that the defendant is not entitled for any
relief. Lastly, the plaintiff prayed for dismissal of the application.
3. Heard Learned Advocate Prashant Pophale h/f. Advocate
Ganpat Monde for defendant and Learned Advocate Nihar Shaikh along
-- 2 of 9 --
3/8 OBE 12 in Comm. Suit 41/2019
with Advocate Dev Motta for Plaintiff.
4. The Learned Advocate Pophale for the defendant submitted
that the defendant has filed the present application for rejection of the
affidavit of examinationinchief. The verification part of affidavit is
very important part. The verification should disclose from where the
information is received by the deponent. It is submitted by the
defendant that the affidavit filed by the plaintiff does not comply with
the provisions of law. It is submitted by the defendant that there is
defect in the verification clause of affidavit. Therefore, he prayed for
rejection of affidavit of examinationinchief.
5. On the contrary, learned Advocate for the plaintiff Nihar
Shaikh submitted that the witnesses have not entered to the witness
box. He submitted that the Court has power to correct the error. He
submitted that the plaintiff may be given liberty to amend the affidavit.
He also submitted that the ruling submitted by the defendant do not
apply to the present case. Lastly, he prayed for dismissal of the
application.
6. Perused the contents of the application and say filed by the
plaintiff. By this application, the defendant prayed that the affidavit in
the form of examinationinchiefin of the plaintiff be rejected.
7. It is contended by the defendant that verification does not
conform with the provision as laid down under Order XIX Rule 3 of the
Code of Civil Procedure. The defendant further contended that the
affidavit is defective as it does not indicate as to what facts were true to
-- 3 of 9 --
4/8 OBE 12 in Comm. Suit 41/2019
her personal knowledge, information and belief. According to the
defendant, the affidavit which does not comply with the provisions of
law has no probative value and it is liable to be rejected. Hence, it is
submitted by the defendant that the affidavit filed by the plaintiff be
rejected. In short, it is contention of the defendant that the affidavit in
lieu of examinationinchief of the witness is defective one. In the
present case, admittedly, the plaintiff has filed his affidavit of
examinationinchief. It is the contention of the defendant that affidavit
was defective and the defect of not getting the affidavit affirm before
any officer can be cured. In this connection, it will be necessary to refer
Section 7 of Oath Act which reads as under:
“7. Proceedings and evidence not invalidated by omission
of oath or irregularity No omission to take any oath or
make any affirmation, no substitution of any one for any
other of them, and no irregularity whatever in the
administration of any oath or affirmation or in the form in
which it is administered, shall invalidate any proceeding or
render inadmissible any evidence whatever, in or in respect
of which such omission, substitution or irregularity took
place, or shall affect the obligation of a witness to state the
truth.”
8. The Learned Advocate for the plaintiff relied upon the
ruling of the Hon'ble Bombay High Court in the case of Miscellany
Marketers Pvt. Ltd. Vs. SunNSand Hotel Pvt. Ltd. 2009 SCC OnLine
Bom 1266 :(2010)1 Mah LJ 396: (2009)6 AIR Bom R (NOC 1287)
408, it is held in para 9 that,
9. In a case where an affidavit in lieu of examinationinchief
of a witness taken on record by the Court is found to be
defective on account of failure to affirm it before the
concerned officer, by exercising inherent power under section
151 of the said Code, the trial Court can always allow the
defect to be cured by permitting the affirmation to be made
subsequently. In the present case, by virtue of examinationin
-- 4 of 9 --
5/8 OBE 12 in Comm. Suit 41/2019
chief of the said witness on oath before the Court and by virtue
of the statement on oath that what was stated in the affidavit
is true and correct, it cannot be said that the said affidavit
continues to be defective by virtue of failure of the witness to
affirm the same before an officer who is empowered to
administer the oath.
9. It is argued by Learned Advocate for the defendant that the
source of information and the reasons for believe have to be disclosed in
the affidavit. But in the present case, the plaintiff has not mentioned
these facts in his affidavit. In any event, if there is defect in the
verification below the affidavit in lieu of examinationinchief, the Court
can exercise its power to amend under Section 153 of the Code of Civil
Procedure and permit the correction to be carried out to the verification
clause of the affidavit. The Court is vested with the sufficient power
under Section 153 of the Code to allow such inadvertent or accidental
defects in the verification clause in the affidavit to be corrected. The
Court has power to permit the witness to get it affirmed at a subsequent
stage. Merely because, there is defect in the verification of the affidavit
only on that count, the affidavit cannot be rejected. The plaintiff can be
permitted to cure the defect or he can be permitted to file additional
affidavit of examinationinchief. So also, he can be permitted to amend
the affidavit.
10. Learned Advocate for the plaintiff rightly submitted the
ruling of the Hon'ble Bombay High Court in the case of Miscellany
Marketers Pvt. Ltd. Vs. SunNSand Hotel Pvt.Ltd. 2009 SCC OnLine
Bom 1266 :(2010)1 Mah LJ 396: (2009)6 AIR Bom R (NOC 1287)
408, wherein it is observed that;
-- 5 of 9 --
6/8 OBE 12 in Comm. Suit 41/2019
(b) Civil Procedure Code, S.151 and O.18, R.4 Affidavit in
lieu of examinationinchief of a witness taken on record by the
Court if found to be defective on account of failure to affirm it
before the concerned officer – trial Court by exercising its
inherent power can allow the defect to be cured by permitting
the affirmation to be made subsequently.
Applying the aforesaid principle of law to the present case,
I am of the view that the Court can exercise its general power to amend
and permit the correction to be carried out to the verification clause of
the affidavit. The defect if any, needs to be cured and the said defect is
not fatal.
11. Learned Advocate for the defendant submitted that the
affidavit filed by the plaintiff is defective one and hence, it be rejected.
In support of his submission, the Learned Advocate for the defendant
placed reliance upon the ruling of Smt. Savitramma, Vs. Cecil
Naronha and Anr. (AIR 1988 SCC 1987) wherein it is held that,
“Statement in affidavit as to statement of fact being based on personal
knowledge – Failure to indicate statements so based – affidavit is liable
to be rejected.” He also relied upon ruling of Hon'ble Bombay High
Court in the case of Nandakumar Shankar Mhatre Vs. Dayanand
Mahadev Mhatre and Ors. (1989) 1 Bom CR 112 wherein it is held
that affidavitinreply filed by the respondent is not verified. The matter
cannot be decided on such defective affidavit, which are not admissible
in evidence. Hence, petition dismissed with liberty to the petitioner to
file fresh petition.
12. I have gone through the aforesaid rulings. There cannot be
dispute about the proposition laid down in the aforesaid rulings. In the
-- 6 of 9 --
7/8 OBE 12 in Comm. Suit 41/2019
case of Smt. Savitramma, Vs. Cecil Naronha and Anr. (AIR 1988 SCC
1987), the Contempt Petition was filed before the Hon'ble Supreme
Court. However, no such petition is filed before the Court. Hence, the
facts of the reported case and the facts of the present case are not
similar. So also, in the case of Nandakumar Shankar Mhatre Vs.
Dayanand Mahadev Mhatre and Ors. (1989) 1 Bom CR 112, the
petition was filed for cancellation of bail. However, in the present case
no such type of application is filed. Hence, the facts of the reported case
and the facts of the present case are not similar. Therefore, the
aforesaid two rulings are not helpful for the defendant.
13. The defendant submitted that the affidavit filed by the
plaintiff does not comply with the provisions of the law and hence it be
rejected. In my view, the plaintiff has filed affidavit in lieu of
examinationinchief and there is also verification clause to the said
affidavit. The affidavit can be treated as the evidence only after the
examination of witness is made on oath and the witness deposes that
the contents of the affidavit are true and correct. Hence, it cannot be
said that plaintiff's Affidavit do not comply with provisions of law.
14. The defects of not getting the said affidavit affirmed before
any officer can be cured by administering oath to the witness. The Court
can permit the correction to be carried out to the verification clause of
the affidavit. The defect is not fatal to the case of the plaintiff. The
defect can be cured. In short, the affidavit of examination in chief filed
on record cannot be rejected. Merely because, there is defect in the
verification clause of the affidavit, entire affidavit cannot be rejected.
Therefore, I find, no substance in the application Hence, I proceed to
-- 7 of 9 --
8/8 OBE 12 in Comm. Suit 41/2019
pass the following order.
ORDER
1. Application at Exh.12 is disposed off.
2. The plaintiff is permitted to cure the defect in the affidavit
and make correction in the verification clause of his
affidavit or the plaintiff is permitted to file additional
affidavit of examinationinchief.
3. Order accordingly.
Dated : 31.01.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 31.01.2023
Transcribed on : 01.02.2023
Signed on : 24.03.2023
-- 8 of 9 --
9/8 OBE 12 in Comm. Suit 41/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27.03.2023 11.30 a.m. Mrs.K.S.Bhosale
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
31.01.2023
Judgment/order signed by P.O on 24.03.2023
Judgment/order uploaded on 27.03.2023
-- 9 of 9 --