Anil Kr Garg (Business) 07 February 2019

Admissibility of affidavit in evidence by defendant w/out ws

I am defending a suit for specific performance, filed against my wife as Defendant No.1 and me as Defendant No.2. Plaintiff's evidence is complete and defendants' evidence is to begin.

Due to incorrect legal advise, only defendant no.1 filed her Written Statement and I, defendant no.2, didn't, whereas I am the person handling everything and wife will have problem facing cross examination.

I filed affidavit, though I am not producing ANY documentary evidence with the affidavit as plaintiff himself had furnished all necessary documents. I only need to refute their story.

Now, plaintiff has filed application u/s sec 151 of CPC order 8 Rule 2 & 5, pleading for rejection of my affidavit on the ground that I failed to file WS, citing Bombay HC judgment in JYOTSNA MANIKLAL BHANDARI VS KESHARCHAND GULABCHAND (2011).

I will be grateful if you could kindly enlighten me on followings:-

1) Case law to the effect that my affidavit need not be rejected merely because I didn't file WS (I have been participating in the proceedings from day 1, and I am not furnishing any documentary evidence, only rebutting plaintiff's story)

2) whether I can file a WS now, if absolutely necessary? Suit was filed in June 2014.

3) Whether I can claim that WS of defendant 1 must be deemed to be filed by both of us?

4) Whether I can adopt WS of defendant No.1 at this stage?

5) Whether I can still appear as Witness, if not as Defendent No.2?

Kindly advise. Thank you very much in advance,

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6 Replies

Suhail suhail (LAWYER) 07 February 2019

2) whether I can file a WS now, if absolutely necessary? Suit was filed in June 2014. Your wife has submitted W/s you were suppoused to adopt the same or would have jointly filed the w/s.It is almost impossible that court would allow you to file the W/S when the plaintiff evidance is closed and case is foryour evidance.You would never be believed .

3) Whether I can claim that WS of defendant 1 must be deemed to be filed by both of us?

You can file application to that effect and if pressed hard even and just made submission that being husband and wife it was intended to filed jointly, as ofcourse the W/S is on record ,you could suceed if the court found your claim geniuine and while you are not trying to delay the proceedindgs. However you have to be prepared to proceed even up to revision or appeal.

4) Whether I can adopt WS of defendant No.1 at this stage? Answered as above

5) Whether I can still appear as Witness, if not as Defendent No.2? You can appear witness there is no hurdle in that.You can appear as your own witness,COurt cannot bar you from appearing as witmness.

Martin S. 07 February 2019

Originally posted by : Anil Kr Garg

I am defending a suit for specific performance, filed against my wife as Defendant No.1 and me as Defendant No.2. Plaintiff's evidence is complete and defendants' evidence is to begin.

Due to incorrect legal advise, only defendant no.1 filed her Written Statement and I, defendant no.2, didn't, whereas I am the person handling everything and wife will have problem facing cross examination.

I filed affidavit, though I am not producing ANY documentary evidence with the affidavit as plaintiff himself had furnished all necessary documents. I only need to refute their story.

Now, plaintiff has filed application u/s sec 151 of CPC order 8 Rule 2 & 5, pleading for rejection of my affidavit on the ground that I failed to file WS, citing Bombay HC judgment in JYOTSNA MANIKLAL BHANDARI VS KESHARCHAND GULABCHAND (2011).

I will be grateful if you could kindly enlighten me on followings:-

1) Case law to the effect that my affidavit need not be rejected merely because I didn't file WS (I have been participating in the proceedings from day 1, and I am not furnishing any documentary evidence, only rebutting plaintiff's story)

The scope of Section 151 CPC has been explained by the Supreme Court in the case K.K. Velusamy v. N. Palanisamy. So you use this one.
2) whether I can file a WS now, if absolutely necessary? Suit was filed in June 2014.
You may file WS or you may not. IF you have filed affidavit, that is enough. If you do not want to be cross examined, then you may state the same to the presiding officer when you (the lady) is called to witness box.
3) Whether I can claim that WS of defendant 1 must be deemed to be filed by both of us?
No.
4) Whether I can adopt WS of defendant No.1 at this stage?
No.
5) Whether I can still appear as Witness, if not as Defendent No.2?
Yes.

Kindly advise. Thank you very much in advance,

Hope ths helps.

Vijay Raj Mahajan (Advocate) 07 February 2019

Even if as defendant 2 have not filled WS, still you can appear as witness in the suit and your affidavit as part of your evidence admissible. You can be cross examined on the basis of the affidavit you filled. There cannot be any bar for you to appear as witness in suit. Application u/s 151 O8 R2 and 5 CPC baring you to file affidavit as your evidence is not maintainable.

Anil Kr Garg (Business) 08 February 2019

Thank you very much

Anil Kr Garg (Business) 08 February 2019

Thank you very much. The plaintiff has prayed to court for rejection of my affidavit because I did not file WS, and also arguing that there is an implied admission of the plaint on my part for not having filed WS.

Of course, I can still appear as Witness, if debarred by court as Defendant No.2. It will not change outcome of the case and will only delay the proceedings a bit, but that is what the plaintiff has always been doing, just employing delay tactics because the case is hopeless and bound to be dismissed by the court.

Thank you very much once again.