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{This Article discusses: can you withdraw an affidavit, withdrawal of affidavit, affidavit meaning, deponent, affidavit for withdrawal of court case, can you withdraw a witness statement, affidavit of withdrawal of documents}

Author - Monil Punjabi

The most vital aspect of a case is, proving it. This is done by leading evidence and standing the test of cross-examination. The Indian Evidence Act 1872 (“Evidence Act”) guides one as to what the evidence can comprise of and what should not form part of it. The Code of Civil Procedure, 1908 (“CPC”) lays down the framework as to how an Affidavit has to be drafted. However, there are times when the same can go terribly against you, for no fault of yours, thus leading to an adverse inference being drawn against you, such situations being:

1. The witness is not able to withstand cross examination, perhaps due to old age.
2. For instance, a Company through its employee had filed an Affidavit of Evidence. The witness was in employment of the Company when the same was filed, but pending the matter reaching commencement of Cross-Examination the employee may have left the Company and may not be available for cross examination.
3. Death of a witness.
4. Circumstantial reasons.

A similar situation arose in the matter between Banganga Cooperative Housing Society Ltd. Vs. Mrs. Vasanti Gajanan Nerurkar in Chamber Summons (L) No. 1678 OF 2014 which came up before the Hon’ble Bombay High Court on June 15, 2015.

• Can an Affidavit of Evidence once filed, be withdrawn? 
• The Hon’ble Bombay High Court held that once an Affidavit of Evidence is filed it cannot be withdrawn. 
• What are the consequences if an affidavit is filed and then it is found, perhaps a long time later, that the deponent of that Affidavit is either unavailable or cannot be tendered for cross-examination? Where documents are admitted in evidence on the basis of an evidence affidavit and the witness is then not made available or tendered for cross-examination, how are those documents to be treated?
• Where the testimony is incomplete by reason of death or incapacity of the witness before cross examination, the evidence, admissible when given, does not cease to be so merely on account of that intervening factual circumstance. Evidentiary value that may be derived out of this is entirely different, and would turn on the circumstances of each case. However, admissions would be taken note of. The Court may presume the existence of any fact which it thinks likely to have happened, being the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The consequences in law would accordingly follow.

Interestingly, in Rasiklal Manikchand Dhariwal & Anr. Vs. MSS Food Products (2012) 2 SCC 196 the Hon’ble Supreme Court was of the view, that the evidence led by the plaintiff was no evidence at all, since the deponents of the Evidence Affidavits had never entered the witness box to confirm the contents of their Affidavit of Evidence. 

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Conclusion

The CPC is an ever evolving law and it does not take into account circumstantial issues that crop up in cases. The Evidence Act tells us what can constitute as Examination-in-Chief or evidence and what cannot. While an Affidavit of Evidence cannot be withdrawn, the admissions made in it would be used against you. 

While drafting the Affidavit of Evidence, one is directed to Order XVIII of the CPC and Order XIX of the CPC. The CPC tells us that an Affidavit ought to, be confined to the personal knowledge of the witness. Furthermore, what is stated must (i) constitute examination-in-chief, and (ii) It must be stated in the form of an Affidavit. Thus, if any portion of an Affidavit of Evidence does not conform to these two essential requirements and is drafted as submissions, arguments, hearsay, the same would not fit within the parameters of an Examination-in-Chief, the same cannot be allowed to pass as testimony of a witness.

{This Article discusses: can you withdraw an affidavit, withdrawal of affidavit, affidavit meaning, deponent, affidavit for withdrawal of court case, can you withdraw a witness statement, affidavit of withdrawal of documents}