1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE MOTION NO.3900 OF 2009 IN SUIT NO.2578 OF 2005 A. H. Tobacowalla .. Plaintiff -versus Voltas Limited .. Defendant Mr. E.P. Bharucha a/w Cyrus Bharucha & Mohan Salian, M/s Vijaynta Shete i/b Gargrats for the Plaintiff. Gaurav Joshi a/w Avinash Joshi, i/b Mulla & Mulla for the defendant. CORAM: S. C. DHARMADHIKARI, J. DATED:5 th December, 2009. P.C. 1. This Motion by the Plaintiff for the following reliefs:- a) that the portions of the Defendant’s Witness No.1’s affidavit in lieu of examination in chief (as detailed in the Schedule herein) be scored out on the grounds that (i) the same are in the nature of submissions; (ii) the same are not relevant to the dispute between the parties; and (iii) the deponent of the affidavit is not the 2 author of the documents sought to be proved as more particularly set out in the schedule herein marked as Exhibit A. 2. Inviting my attention to the affidavit in lieu of examination in chief of D.W.1 Shri.Varun P. Malhotra and more particularly para 10 and 38 thereof, Shri. Bharucha, learned Senior Counsel, submits that what the witness has deposed about are the guidelines of Tata Group Companies. At the same time, he refers to the adoption of these guidelines by Tata Sons Ltd on or about 3rd May, 1994. Thereafter he deposes about draft guidelines. Shri. Bharucha, submits that the witness is in the employment of the Defendant M/s Voltas Ltd. He is not the employee of Tata Sons Ltd. A person in employment of said Tata Sons Limited, alone can depose about the guidelines and their adoption by Tata Sons Ltd. Therefore, this portion of the affidavit in examination in chief be omitted from consideration. 3. In so far as para No.38 is concerned, Shri.Bharucha’s objection is that the witness is deposing about something, which is not his evidence but interpretation of the case of the Plaintiff. That the witness is not called upon to depose and therefore part of para 38 3 should also be omitted from consideration. 4. Shri. Joshi, learned counsel appearing for the Defendant on the other hand states that the judgment on which reliance is placed by Mr.Bharucha, viz Full Bench Judgment of this Court, in Hemendra Rasiklal Ghia & ors -vs- Subodh Mody & ors, reported in 2008(6) Bom C.R. 519, makes a distinction between the admissibility of documents and admissibility and relevancy of evidence contained in the affidavit of witness, filed under Order XVIII rule 4 of the Civil Procedure Code. He submits that this distinction has to be maintained inasmuch as the objection to relevancy of the evidence contained in the affidavit can be gone into at any stage until final judgment in the suit is delivered. Therefore, it is not as if the plaintiff cannot object to the said portion or while conducting the cross examination of witness, keep the said objection open for being raised at the subsequent stage. Therefore, no prejudice is caused to the Plaintiff. In any event the guidelines of Tata Sons of l994 is something on which the plaintiff himself placed reliance. Shri. Joshi, submits just as Tata Sons Ltd is a Tata Group Company, even the Defendant is part of the same, therefore, there is nothing which prohibits the witness him from speaking about these 4 guidelines. 5. I have heard counsel having heard at some length and with their assistance, I have perused the Full Bench Decision. To my mind there is no necessity to rule upon the objections with regard to the statements in para Nos l0 and 38 of the Affidavit in evidence, which is the only objection which has been raised before me, I am of the view that it can be raised even after the evidence is recorded in the suit. It is not as if the Court is being called upon to rule on an objection to the admissibility of documents. The relevancy and admissibility of the evidence contained in the affidavit is in issue. As is clarified by the Full Bench merely because the Plaintiff participates in the proceeding, as far as recording of evidence, does not mean that he is prohibited or precluded from arguing on this objection at a later stage. Such objection can be raised even at a subsequent stage in the suit and until final judgment is delivered. That is the clear enunciation of law. 6. In my view, the Plaintiff can proceed to cross examine the witness by keeping open all objections for being raised at an appropriate stage. Merely because the Plaintiff cross examines the witness/es does not mean that the objection cannot be raised at a later stage. Keeping it 5 open, evidence can proceed. The Motion is disposed of. 7. At this stage Shri.Bharucha invites my attention to para 10 and submits that in the light of Full Bench Decision and the ruling just now given, it should not be construed that the guidelines referred in the Affidavit, be are marked as Exhibit in the suit. Upon taking instructions, Shri. Joshi makes a statement that even if the Plaintiff cross examines the witness, the Defendant would not take a stand that the contents of the document are undisputed and pleas of both sides in that behalf can be kept open. Statement accepted. (S. C DHARMADHIKARI, J)