Delhi High Court
Vinod Vashisht vs Suresh Chanchal & Ors. on 10 September, 2014
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.05.2014
Date of Decision: 10.09.2014
+ CM (M) No.1277 of 2012
VINOD VASHISHT ...... Petitioner
Through: Mr. M.K. Gautam, Adv.
versus
SURESH CHANCHAL & ORS. ..... Respondents
Through: Mr. Prasoon Kumar & Ms. Iram Majid, Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. In this petition under Article 227 of the Constitution of India, the
petitioner seeks setting aside of two orders. The first one being the order
of the ACJ-cum-ARC (South-West) dated 30.1.2012, which allowed the
respondent/defendant‟s application under Section 151 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the „Code‟) to amend
the affidavit supporting his Written Statement (WS). The second one is
an order dated 31.07.2012 in a review application preferred by the
petitioner/plaintiff, whereby the order dated 20.01.2012 was affirmed
resulting in the dismissal of the petitioner‟s review application.
2. The petitioner/plaintiff had filed a suit for recovery of certain amounts
from respondent No.1, who was alleged to be the proprietor of
respondent No.2, Adarsh Lucky Scheme and was resident of WZ-864-A,
Village Naraina, New Delhi-110028. In the WS, the respondent No.1-
Mr. Suresh Chanchal, had denied his proprietorship of the said M/s.
Adarsh Lucky Scheme. Particularly, in reply to para 2 of the plaint, he
_______________________________________________________________________
had averred:
"2. That the contents of para No.2 of the suit are
also wrong, false, fabricated and baseless. It is
specifically denied that the defendants jointly or
severally were collecting the subscription from the
members of the said lucky draw/lottery started by
them under the name and style of M/s. Adarsh Lucky
Scheme and M/s. Adarsh Thrift and Credit Society
from their officer at House No.WZ-869, Naraina,
New Delhi, since 2001 and also dealing with contract
business independently or with M/s. A.K. Electricals
under some agreement."
3. The affidavit in support of the WS identified the deponent, Mr. Suresh
Chanchal as the proprietor of M/s. Adarsh Lucky Scheme resident of
WZ-864-A, Village Naraina, New Delhi-110028. This according to
respondent/defendant No.1 was a typographical error and his identity
ought to have been typed as Shri Suresh Chanchal s/o Shri Natthu Lal
r/o WZ-864-A, Village Naraina, New Delhi-110028. His application
under Section 151 of the Code, to amend the affidavit was allowed in
view of the fact that: (i) in reply on merits, the defendant No.1 had
already specifically denied his being the proprietor of M/s. Adarsh
Lucky Scheme; (ii) the affidavit itself stated that the contents of the WS
were to be read as part and parcel of the WS; and (iii) that in the interest
of justice, the application ought to be allowed without it being an
expression of opinion on the merits of the case.
4. The petitioner‟s review application was dismissed on the same ground as
above. The Trial Court further noted that there was merit in the
application of defendant No.1 because the affidavit needed to be
_______________________________________________________________________
rectified in terms of the WS.
5. The learned counsel for the petitioner contended that: (i) the said
application was not maintainable in law as there was no provision in the
Code to rectify the pleadings; (ii) that similar cases were pending before
co-ordinate courts and allowing the affidavit to be amended would result
in reversal of the decrees passed by the Senior Civil Judge in similar
suits; (iii) that on the basis of the said admitted fact, the Court of
Metropolitan Magistrate had directed the SHO, P.S. Naraina to lodge an
FIR against the defendants; (iv) the admission once made by them could
not be permitted to be withdrawn as it was barred under Section 115 of
the Evidence Act particularly since the affidavit had been sworn before
an Oath Commissioner; and furthermore (v) the deponent Suresh
Chanchal had been identified as the proprietor of Adarsh Lucky Scheme
by the Advocate and a corresponding entry had been made in the register
of the Oath Commissioner which had not been rectified till date.
6. The learned counsel for the respondents submitted that a similar stand
had been taken by the defendant in other suits pending before the Trial
Court bearing Nos. 83/09 and 86/09, which incidentally, were filed
simultaneously with suit No.87/09 titled as Vinod Vashishth vs. Suresh
Chanchal. Therefore, this rectification was occasioned because of the
bona fide typographical error. The learned counsel for the respondent
has relied upon the Supreme Court dicta in Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India AIR 2005 SC 3353, which
referred to the constitutional validity of amendments made to the Code
of Civil Procedure by the Amendment Acts of 1999 and 2002. It
considered the Report of the Committee headed by a former Judge of the
_______________________________________________________________________
Supreme Court and Chairman, Law commission of India (Justice M.
Jagannadha Rao), which was to see that the aforesaid amendments
become effective and result in quicker dispensation of justice. The
Report was in three parts. With respect to supporting of pleadings by an
affidavit, the report recorded as under:
"4. Prior to insertion of aforesaid provisions,
there was no requirement of filing affidavit with the
pleadings. These provisions now require the plaint to
be accompanied by an affidavit as provided in
Section 26(2) and the person verifying the pleadings
to furnish an affidavit in support of the pleading
[Order VI Rule 15(4)]. It was sought to be contended
that the requirement of filing an affidavit is illegal
and unnecessary in view of the existing requirement
of verification of the pleadings. We are unable to
agree. The affidavit required to be filed under
amended Section 26(2) and Order VI Rule 15(4) of
the Code has the effect of fixing additional
responsibility on the deponent as to the truth of the
facts stated in the pleadings. It is, however, made
clear that such an affidavit would not be evidence
for the purpose of the trial. Further, on amendment
of the pleadings, a fresh affidavit shall have to be
filed in consonance thereof."
7. This Court notices that in a subsequent decision in Ponnala Lakshmaiah
Vs. Kommuri Pratap Reddy, (2012) 7 SCC 788, the Supreme Court held
that in support of an election petition where the affidavit was not filed in
the given format, the format could not be exalted by a judicial
interpretation to the status of a statutory mandate. The Court considered
the insistence upon the format a hypertechnical approach. Referring to
and relying upon its earlier judgements the Court held that:
_______________________________________________________________________
"the format of the affidavit is at any rate not a matter of
substance. What is important and at the heart of the
requirement is whether the election petitioner has made
averments which are testified by him on oath, no matter
in a form other than the one that is stipulated in the
Rules. The absence of an affidavit or an affidavit in a
form other than the one stipulated by the Rules does not
by itself cause any prejudice to the successful candidate
so long as the deficiency is cured by the election
petitioner by filing a proper affidavit when directed to do
so."
8. From the aforesaid discussion, what is evident is that the present
respondent No.1/defendant No.1 had on merits categorically denied that
he was the proprietor of M/s. Adarsh Lucky Scheme or had anything to
do with it. Order VI of the Code deals with "Pleadings Generally".
Rule 15 thereof, deals with "Verification of pleadings". Sub-Rule 4 of
Rule 15, requires that: "The persons verifying the pleading shall also
furnish an affidavit in support of his pleadings." Therefore, what needs
to be seen is whether in substance, the plaint was dealt with in the WS.
The WS is the substantive document which has to be seen in reply to the
plaint. It is the WS which is the basis of the affidavit. The affidavit only
supports the main document, which is the WS. A support by its very
definition cannot be parasitical nor draw away or reduce that which it
supports. Therefore, the WS cannot be diminished by the supporting
affidavit. Insofar as such affidavit is not in consonance with the main
document of pleading i.e. the WS, it can be permitted to be rectified, on
_______________________________________________________________________
an application being so preferred. Furthermore, the supporting affidavit
is only for the purpose of fixing additional responsibility on the
deponent as to the truth of the facts stated in the pleadings. Salem Bar
Association (supra) refers to Report No.1 which had recommended that
such an affidavit would not be evidence for the purpose of the trial. In
any case the affidavit would have to be in consonance with the
pleadings.
9. Insofar as the respondent No.1/defendant No.1 sought amendment of the
affidavit to bring it in consonance with the Written Statement in
particular with para 2 of the pleadings, the application ought to have
been and was rightly allowed. The pleadings could not extend to the
supporting affidavit because, evidence would have to be led through
further depositions.
10. The impugned orders do not suffer from material irregularity. The view
taken in them is plausible in law. There is no reason for this Court to
interfere with the impugned orders. The petition is without merit and is
accordingly dismissed.
SEPTEMBER 10, 2014 NAJMI WAZIRI, J.
b'nesh
_______________________________________________________________________
