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Amalgamated Commercial Traders Private Ltd. Vs. C. Hariprasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.S. No. 65 of 1964 and Appn. No. 2340 of 1964
Judge
Reported inAIR1966Mad161; (1965)2MLJ477
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 16 - Order XIX, Rule 27 - Order XXVIII, Rule 11
AppellantAmalgamated Commercial Traders Private Ltd.
RespondentC. Hariprasad
Cases ReferredIn Zamindar of Tuni v. Benayya
Excerpt:
- - ramaswami appearing for the applicants would have failed to rely on them......in the manner aforestated.'there can be no doubt that several averments made in the above passage are scandalous, and, in my opinion, they are totally irrelevant either to the application, or to the suit. in fact, this passage and the other offending passages were not referred to or relied upon by the advocates who argued the applications nos. 1833 to 1840 and 2080 of 1964, though the said application were argued on two days. if the averments were in any way relevant, it is extremely unlikely that sri g. ramaswami appearing for the applicants would have failed to rely on them.(5) harry kingsley has stated in his affidavit that he has not filed any other affidavit in this suit except the present one to defend himself, and this fact is not disputed. he has been referred to as an.....
Judgment:
ORDER

(1) Application by the plaintiff to expunge certain words, passages and sentences from the affidavit of the respondent filed in Appln. No. 1838 of 1964 in C.S. 65 of 1964 on the file of this court, as being scandalous, irrelevant, unnecessary and calculated to prejudice and embarrass the trial of the suit.

(2) Sri G. Ramaswami, appearing for the respondent, took a preliminary objection that Order VI, Rule 16 C.P.C., can be invoked only in respect of pleadings and that there is no corresponding provision in respect of affidavits in Order XIX C.P.C. Order XIX, Rule 27 of the Rules of the Supreme Court corresponds to Order VI, Rule 16 C.P.C. Order XXVIII Rule 11 of the Rules of the Supreme Court provides that the court or judge may order to be struck out from any affidavit only matter which is scandalous. Sri G. Ramaswami stressed on the fact that there is no corresponding provision in the Civil Procedure Code and that even in England the said rule is confined only to 'scandalous' matters in affidavits. It is clear from Mullah's Civil Procedure Code, 12th Edn., Volume I at page 593, that every court has an inherent power, quite independently of Order VI, Rule 16, C.P.C., to strike out scandalous matter in any record or proceeding. In Christie v. Christie, (1863) 8 Ch A 499 it is stated that the court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter. In In re Clive Durant, ILR 15 Bom 488 the High Court of Bombay refused to allow an application for bail containing defamatory allegations against the trying magistrate to be filed and ordered it to be returned. In Zamindar of Tuni v. Benayya, ILR Mad 155, the High Court of Madras ordered the objectionable passages in a Memorandum of appeal alleging partiality against the Judge who decreed the suit to be expunged. Thus under S. 151, C.P.C. it is open to the court to expunge scandalous allegations which are irrelevant to the proceedings, even if they are contained in an affidavit. But as pointed out in the passage in Mulla referred to above it must be noted that nothing can be scandalous which is relevant.

(3) The applicant has referred to as many as six offending passages in the affidavit of the second defendant, in the schedule to the application. The first four are allegations against the present directors as puppets or tools of the Morarkas. Having regard to the pleadings in this suit, I am unable to state that they are irrelevant.

(4) The last two offending passages mentioned in the schedule to the application are found in the following passage in the affidavit of the second defendant:

'The company has no staff in Madras except an attender now promoted as Assistant, Mr. Harry Kingsley. He is totally ignorant of the affairs of the company; but the company has shifted its registered office to 337, Thambu Chetti Street in a room adjacent to the office of its counsel, Mr. G. Vasanta Pai, so that be may be enabled to get affidavits made to his dictation and executed by the said Mr. Harry Kingsley at his orders. The Madras office is practically under the advice and supervision of Mr. Pai and its present almost sole activity is the prosecution of various proceedings against me and the other defendants in the manner aforestated.'

There can be no doubt that several averments made in the above passage are scandalous, and, in my opinion, they are totally irrelevant either to the application, or to the suit. In fact, this passage and the other offending passages were not referred to or relied upon by the advocates who argued the applications Nos. 1833 to 1840 and 2080 of 1964, though the said application were argued on two days. If the averments were in any way relevant, it is extremely unlikely that Sri G. Ramaswami appearing for the applicants would have failed to rely on them.

(5) Harry Kingsley has stated in his affidavit that he has not filed any other affidavit in this suit except the present one to defend himself, and this fact is not disputed. He has been referred to as an attender now promoted as assistant. Kingsley has denied in his affidavit that he was ever an attender. It is stated in the reply affidavit of the respondent that Kingsley was drawing the pay of an attender. Even if Kingsley was drawing the pay of an attender, it would not be sufficient to characterise him as an attender. It is also unnecessary to indulge in the scandalous remark that Harry Kingsley was an attender in the application to direct the plaintiff to give security for costs. Kingsley has stated in his affidavit that he drafted the proceedings of a meeting to the dictation of the second defendant and a photo copy of the same has been filed.

(6) The more serious allegation in the above offending passage is one against Sri G. Vasantha Pai, appearing for the plaintiff in the suit. It is stated that the company shifted the office to the premises where Sri Vasantha Pai is having his chambers so that he may be enabled to get affidavits made to his dictation and executed by the said Harry Kingsley. There is a further allegation that the Madras office is practically under the advice and supervision of Mr. Pai. The above allegation that Mr. Pai is supervising the Madras Office is scandalous and defamatory and there is absolutely no necessity to make that allegation in the affidavit in support of the application for directing the plaintiff to furnish security for costs. It is unfortunate that an affidavit containing such allegations has been filed.

(7) For the foregoing reasons, the above offending passage in the affidavit of the second defendant is ordered to be expunged. The applicant is entitled to costs of this application.

(8) Application allowed.


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