Evidence beyond pleadings cannot be struck off; objections must be raised and adjudicated at trial.

The petitioner-plaintiff instituted O.S. No.8853/2013 seeking recovery of ₹92,71,000 with interest.

In his written statement, the respondent-defendant pleaded that he had paid ₹10,00,000 and ₹19,00,000 to the plaintiff.

His subsequent application under Order VI Rule 17 CPC to amend the written statement by pleading total payment of ₹50,00,000 was rejected by the Trial Court, and the rejection was affirmed by the High Court in W.P. No.43830/2016.

Thereafter, in his affidavit in lieu of examination-in-chief, DW-1 stated that the plaintiff had received ₹53,00,000 and made other assertions allegedly beyond the pleadings.

The plaintiff applied under Order VI Rule 16 read with Section 151 CPC and Rule 3(2) of the Karnataka Civil Rules of Practice, seeking deletion of paragraphs 10 to 12 of DW-1’s affidavit.

He also sought reopening of the case and recall of DW-1 for cross-examination.

The Trial Court rejected these applications by orders dated 08.04.2022 and 12.04.2022.

Whether an application under Order VI Rule 16 CPC can be maintained to strike off portions of an affidavit filed in lieu of examination-in-chief on the ground that the evidence travels beyond the pleadings?

Whether the plaintiff should be permitted to reopen the case and recall DW-1 for cross-examination after the defendant’s affidavit contained allegedly unpleaded facts?

The Court applied the principles governing pleadings and evidence under the CPC, particularly Order VI Rule 16, Order VI Rule 17, Order XVIII Rule 4 and Section 151 CPC.

Pleadings must give the opposite party notice of the case to be met, and no party may establish a new case through evidence without a foundation in the pleadings.

The Court relied on Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491, holding that pleadings and issues prevent expansion or shifting of the case and that no amount of evidence on an unpleaded plea can be relied upon to grant relief.

It also relied on Kaushik Narsinhbhai Patel v. S.J.R. Prime Corporation Pvt. Ltd., (2024) 9 SCC 462, and Smt. Nalini Sunder v. Sri G.V. Sunder, AIR 2003 Karnataka 86, for the rule that a party cannot make out a case through evidence for which no foundation was laid in the pleadings.

Under Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702, examination-in-chief is ordinarily tendered by affidavit under Order XVIII Rule 4, while cross-examination remains available in accordance with law.

However, the CPC provides no mechanism for striking off portions of an examination-in-chief affidavit merely because they are beyond the pleadings; the proper course is to raise an objection before the Trial Court, during cross-examination, or at final arguments.

The Court found that paragraphs 10 to 12 of DW-1’s affidavit included assertions beyond the defendant’s pleaded case, particularly the statement regarding payment of ₹53,00,000, despite the earlier rejection of the proposed amendment concerning payment of ₹50,00,000.

Nevertheless, the Court held that such evidentiary objections do not justify striking off portions of an examination-in-chief affidavit because no such procedural mechanism is contemplated by the CPC.

The plaintiff could preserve the objection by filing written objections, confronting DW-1 during cross-examination, or raising the issue at final arguments, whereupon the Trial Court would be required to address it in the final judgment.

Since DW-1’s affidavit had been tendered without the plaintiff receiving an effective opportunity to cross-examine him, denial of cross-examination would prejudice the plaintiff and leave the evidence untested.

The Court therefore considered recall and reopening necessary to secure a fair opportunity to cross-examine DW-1.

The Court declined to interfere with the rejection of the application seeking deletion of paragraphs 10 to 12 of DW-1’s affidavit, holding that the plaintiff could instead raise objections in the manner indicated by the Court.

The plaintiff’s application under Section 151 CPC was allowed, and the plaintiff was permitted to cross-examine DW-1 after reopening the relevant stage of the proceedings.

No order was made as to costs.