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Procedure to be followed by court when evidence is adduced w

Procedure to be followed by court when evidence is adduced which is beyond pleading

Delhi High Court in case of Amarjit Kaur (Supra) has held that an omission to object to evidence not admissible under the Evidence Act does not make it admissible and it is the duty of the Judge to exclude inadmissible evidence whether or not objected to by a party. It is held that the duty of a Judge is to disallow inadmissible evidence even when no objection is taken. He should stop such questions himself without waiting for an objection to be taken to the admissibility. The moment a witness commences giving evidence which is inadmissible he should be stopped by the court. I am in respectful agreement with the views expressed by the Delhi High Court in case of Amarjit Kaur (supra).

53. In my view, Mr Shah learned counsel appearing for the applicant has rightly pointed out that part of the deposition of Dr Navroze Kotwal is irrelevant to the issues and beyond the scope of pleadings as the said witness has sought to lead evidence on the matrimonial dispute between the applicant the said witness which allegations are neither relevant for the purpose of deciding any issues in testamentary matter, nor is in consonance with the pleadings filed by the defendants. It is not in dispute that defendants have already led evidence of three witnesses on various issues framed. The witness now proposed to be examined to prove that the Will was not executed by the said deceased is contrary to the affidavit filed by the deponent himself in which he has not only admitted execution of the Will but has reserved his right to act as executor in future. The deponent of the said affidavit has never applied for withdrawal of the the said affidavit filed in this Court.

54. In my view, the objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons.

Bombay High Court

Mrs Mahabanoo Navroz Kotwal vs Piloo Fali Bomanji on 10 June, 2014

Bench: R.D. Dhanuka