1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.529 of 2025 Date of Decision: 11.05.2026 Maya Poddar and another ...Petitioners Versus Pardeep Aggarwal ...Respondent Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the petitioners : Mr. Vipin Pandit, Advocate. For the respondent : Mr. P.S Goverdhan, Sr. Advocate with Mr. Rakesh Thakur, Advocate. Romesh Verma, Judge(oral) The present petition arises out of the order dated 18.08.2025, as passed by the learned Rent Controller, Solan, District Solan, H.P., whereby application field by the respondent under Section 151 C.P.C, for rejecting the affidavits of Sh. Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Sharma by way of rebuttal evidence, has been allowed. 2. Brief facts of the case are that the petitioners/landlords filed the petition against the respondent- tenant on the ground of personal bonafide requirement. The copy of the petition has been placed on record as Annexure 1Whether reporters of Local Papers may be allowed to see the judgment? 2 P-1 which reveals that the said petition was filed on 19.09.2016. 3. The said eviction petition was duly contested by the respondent/tenant by filing a reply, and the same has been placed on record. 4. The learned Rent Controller vide its order dated 15.11.2022 framed the following issues: 1. Whether the petitioners are entitled for eviction of the respondent on the ground that the premises are bonafidely required by the petitioners for their own personal use and occupation as prayed for? OPP 2. Whether the premises is not maintainable, as alleged? OPR 3. Whether the petition is bad for mis-joinder of party, as alleged? OPR 4. Whether the petitioners are estopped by their own act, conduct and acquiesces? OPR 5. Whether the petitioners have concealed the material facts from the Court? OPR 6. Relief 5. The landlords concluded their evidence and thereafter time was granted to the respondent-tenant to complete his evidence. After tenant concluded his evidence, the learned trial Court fixed the matter for rebuttal evidence. When such time was granted to the landlords/petitioners, an application was filed by the tenant under the provisions of section 151 CPC dated 09.06.2025 for rejecting the affidavits 3 of Sh. Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Sharma by way of rebuttal evidence. 6. It has been averred in the application that the affidavits intended to be examined as rebuttal evidence by the petitioners are beyond the scope of rebuttal evidence. It has also been averred that the contents of the affidavits show that the said affidavits constitute evidence in affirmative. Thus the aforesaid evidence cannot be led in rebuttal. It has further been averred in the application that the present petitioners/landlords by filing the said affidavits of the witnesses intends to lead the evidence in affirmative under the guise of rebuttal evidence, which is beyond the scope of the issues as well as the law also. It has further been averred that the proposed evidence is an effort to fill up the lacunae left over by the petitioners during their evidence and also an endeavour to withdraw the admissions made by them and the witnesses during their cross examination. 7. The said application was duly resisted by the present petitioners by refuting all the averments as made in the application and it was denied that the affidavits in question constitute evidence in affirmative in rebuttal and as such, evidence cannot be led, as alleged. It was further denied that the petitioners by filing the affidavits in question intend to 4 lead evidence in affirmative under the guise of rebuttal which is beyond the scope of issues as well as law as alleged. 8. The learned Rent Controller vide its impugned judgment dated 18.08.2025 allowed the application filed by the tenant/respondent and the affidavits of Sh. Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Shama filed by the present petitioner by way of rebuttal evidence were rejected beyond the scope of rebuttal evidence. 9. Feeling dissatisfied, the landlords/ petitioners have approached this Court by filing instant petition under Article 227 of the Constitution of India. 10. Mr. Vipin Pandit, learned counsel for the petitioners, has submitted that the impugned order as passed by the learned Rent Controller(1), Solan is erroneous and against the well settled principle of law as laid down by the Hon’ble Apex Court and by the Hon’ble different High Courts. He submits that on the basis of record, the impugned order as passed by the learned Rent Controller(1), Solan is unsustainable. He submits that the admissibility or relevancy of the said affidavits could be seen at the time of final arguments only therefore, the same could not have been rejected straightaway. 11. On the other hand Mr. P.S Goverdhan, learned Senior counsel assisted by Mr. Rakesh Kumar, Advocate has 5 defended the impugned order and he submits that the affidavits which have been filed by the landlords/petitioners are beyond the scope of rebuttal evidence and they are in the shape of evidence in affirmative, therefore, the learned Rent Controller has rightly allowed the application under Section 151 C.P.C by rejecting the affidavits filed by Sh. Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Sharma. 12. I have heard the learned counsel for the parties and have gone through the record of the case. 13. The landlords/petitioners have filed the instant petition feeling aggrieved by the impugned order as passed by the learned Rent Controller(1), Solan, whereby, an application filed by the respondent/tenant under Section 151 C.P.C by rejecting the affidavits of Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Sharma, has been allowed. 14. Mr. Vipin Pandit, learned counsel for the petitioners, has relied upon the judgment of Hon’ble Apex Court in Bipin Shantilal Panchal Vs State of Gujarat & another (2001) 3 SCC 1, wherein it was held as under: “13. It is an archaic practice that during the evi- dence collecting stage, whenever any objection is raised regarding admissibility of any material in evi- dence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and ex- cludes the material from being admitted in evi- dence and then proceeds with the trial and dis- 6 poses of the case finally. If the appellate or revi- sional court, when the same question is re-can- vassed, could take a different view on the admissi- bility of that material in such cases the appellate court would be deprived of the benefit of that evi- dence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceed- ings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.” 15. Further he has relied upon the judgment of the Hon’ble High Court of Bombay in Writ Petition No.623 of 2005 dated 16.10.2008 titled as Hamendra Rasiklal Ghia Vs Subodh Mody, relevant paras whereof, which read as fol- lows: “4. In the another writ petition, being Writ Petition No.623 of 2005, the petitioner is a defendant. He has been sued for damages in respect of certain allegedly defamatory statements. The petitioner therein has ob- jected to the admissibility and relevance of the evi- dence tendered by the respondent in the examination- in-chief by way of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure ("C.P.C." for short). The trial Court ruled that the question whether or not a particu- lar statement is relevant or admissible cannot be gone into before cross-examination of the witness and can be considered finally at a later stage. Being aggrieved by the above order, the petitioner in- voked writ jurisdiction of the learned Single Judge and pressed into service the grounds similar to those in Writ Petition No.1902/2005. 29. Having heard various learned counsel appearing for the parties, we propose to answer the question, af- ter taking review of the law holding the field but slightly amending and splitting it in two parts for the sake of 7 convenience to answer. The question, as reframed/amended, will read as under:- Question-A. At which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised; considered and decided by the Court Question-B. At which stage, an objection to the admissibility or rele- vancy of evidence contained in the affidavit filed under Order XVIII rule 4 of C.P.C. should be considered and de- cided by the Court The Rulings/Authorities : 77. So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evi- dence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn. Ltd. (supra); wherein the Court ruled as under: "..... If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can al- ways be taken before the court in writing and in any event, the attention of the witness can alwaysbe drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever if the examina- tion-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open Court........." (Emphasis supplied) 78. The reading of the aforesaid extracted portion would go to show that the Apex Court has clearly ruled that if any objection is to be taken to the statement made in the affidavit, then such objection should always be taken before the court in writing and the attention of the witness should always be drawn while cross-exam- ining him. In other words, it is not necessary to decide the objections relating to admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII Rule 4 of C.P.C. as they arise. The determination or decision thereon can be deferred to a later stage of the suit. However, final decision must be recorded before 8 the Court proceeds to judgment. The irrelevant evi- dence brought on record can always be excluded as the question of admissibility of evidence is a question of law. Even the objection that a piece of evidence which was considered by the judgment was irrelevant can be taken up for first time in appeal (see Miller v. Madhodas, 23 Ind App 106 (PC). In Narhari v. Ambabai, AIR 1920 Bom 244, it was held that erroneous omission to object to irrelevant evidence does not make the evidence rele- vant. 79. Section 33 of the Evidence Act deals with relevancy and not with the mode of evidence. If the evi- dence is irrelevant, consent of parties cannot make it relevant. Thus, more convenient mode is to admit the objection in the first instance, reserving question of law as to its admissibility until final judgment in the case. 81. Answer to Question-B The objection to the admissibility or relevancy of evi- dence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (supra).” 16. To the similar extent is the judgment as passed by the Orissa High Court in Para Biswal vs Janjali Khan (AIR 2005 Orissa 7 wherein it was held as under:- “6-7. The discussion made above thus makes it clear that the evidence produced on affidavit is to be taken on record. The evidentiary value of such evidence has to be considered along with other evidence on record. The Court has no right to reject the evidence and direct the witness to file a fresh affidavit. 8. Law is no more res Integra that if there is variance between the pleadings and the evidence, the evidence beyond the pleadings should not be taken into consid- eration and should be ignored. If P.W. 3 has made cer- tain statements in his evidence rendered through affi- davit, contrary to the pleadings and/or in variance with the pleadings of the parties the said statements are to 9 be ignored and not that the entire evidence/affidavit is to be discarded. Under such circumstances, it is open to the defendants in course of cross-examination to confront the witness with the pleadings and/or bring to the notice of the Court in course of hearing. The inten- tion of the Legislature as would be evident from Order 18, Rule 4 of the Civil Procedure Code as would evi- dent from the proviso is, if any of the parties have any objection to the evidence adduced by a witness through affidavit, the same can be challenged only at the time of hearing of the suit.” 17. He has also relied upon the judgment in Cesar Rego Fernandes & ors. Vs Angela Ninette Oliveira Fernandes & Ors. (2008) 2 Civil Court Cases 463(Bombay) relevant paras whereof read as follows: “3. In my view, none of the aforesaid Judgments are the authorities on the fact that the Court can strike out paras from an affidavit-in-evidence which is filed as examination-in-chief, by the parties. If, there is any statement in the affidavit which according to the opposing party is beyond the pleadings, then it is always open to such a party to put this to the witness in his cross-examination. It is also open to the Court to consider the relevance and weightage to be given to any such statement in the examination-in-chief when there is no foundation laid in the pleadings. It would, however, not be correct to strike out paras in the affidavit itself. Such an application could not be supported by any provision of Civil Procedure Code”. 18. Based upon the aforesaid judgments, Mr. Vipin Pandit, learned counsel for the petitioners has submitted that rejection of the affidavits at threshold straightway by learned Rent Controller is erroneous in the eyes of law. He further submits that the best course, which was available to the Rent Controller, was to have taken on record such affidavits and admissibility and the relevance of the said affidavits could 10 have been adjudicated at the time of the final arguments in the main matter. He further submits that even the tenant/respondent will get an opportunity to cross-examine the said witnesses whose affidavits the landlords/plaintiffs intend to place on record. 19. The Hon’ble Apex Court and the High Courts of Bombay and Orissa have categorically held that the admissibility or relevancy of the affidavits cannot be adjudicated or determined at the threshold, the principle has been formulated by the courts for the determination of the said objection at the time of the final argument. 20. In view of the settled principle of law, which has been laid down by the Hon’ble Apex Court, this Court is convinced by the submissions as made by the learned counsel for the petitioners that the learned Rent Controller ought not to have rejected the affidavits straightaway without taking them on record and keeping the question open for its admissibility or relevancy at the time of final arguments. 21. In view of aforesaid discussion, I find merit in instant petition and the same is accordingly allowed and the impugned order dated 18.8.2025 is quashed and set- aside. 22. Consequently, affidavits as filed by Pankaj Bansal, Smt. Kiran Puri and Sh. Suresh Sharma, are ordered to be taken on record, subject to its proof by 11 landlords/petitionerrs and the objections, if any, taken by the respondent-tenant, however the said objection shall be determined by the learned Rent Controller(1), Solan at the time of final arguments in accordance with law. Pending application(s), if any, also stands disposed off. (Romesh Verma), Judge 11.05.2026 (veena)