Amalgamated Commercial Traders Private Ltd. vs C. Hariprasad

Sadasivam, J.—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.

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 CPC 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.

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.

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.

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.

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.

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.

Application allowed.