Plaintiff must begin, but evidence cannot be arguments

The plaintiff has the right to begin. But what happens when their 'evidence' reads like a legal argument? The Andhra Pradesh High Court has drawn a sharp line between what a party can say in court and what they can put in an affidavit — and the difference could decide who wins a case before it even begins.

In G. Venkatakrishnam Raju v. B. Jayalakshmi, the court was asked a single question: who presents evidence first, and what exactly counts as evidence? The answer turned on two provisions of the Code of Civil Procedure, 1908 (CPC) — the rulebook for every civil case in India.

Order 18 Rule 1 gives the plaintiff the right to begin. The logic is simple: the plaintiff carries the burden of proof. He must first show the court why he deserves a judgment. Only then does the defendant respond.

Order 18 Rule 2 adds the next layer. The G. Venkatakrishnam Raju court observed: "The party having the right to begin shall state his case and produce his evidence." Only then does the other side get its turn. That much was clear.

The real trouble began when the court looked at how parties were actually presenting evidence — through written affidavits instead of live testimony. When the judge opened the affidavit, the typed pages felt heavy with legal jargon — paragraphs that read like a closing argument, full of legal conclusions, not facts. The judge adjusted her glasses, the affidavit's 40 pages of legal conclusions stacked on the bench. The courtroom fell silent as she scanned the document. That is when she turned to Order 18 Rule 4.

When the affidavit stopped being evidence

Order 18 Rule 4 of the CPC allows a party to present their examination-in-chief (the initial questioning of a witness by the party who called them) through an affidavit — a sworn written statement. It is a practical shortcut. Instead of having a witness sit in the box and answer questions, the lawyer files a written statement covering everything the witness would have said.

But the G. Venkatakrishnam Raju court noticed a creeping problem. Parties were using these affidavits not to present facts, but to argue their case. An affidavit would read less like "I saw the defendant sign the contract" and more like "The defendant is liable because the contract was validly executed and the plaintiff performed all obligations."

That distinction matters. An affidavit in lieu of examination-in-chief is supposed to contain only what a witness could properly say from the witness box. A witness cannot argue. A witness cannot make submissions. A witness can only state facts they personally know — what they saw, heard, or did.

When an affidavit reads like a lawyer's closing argument — with legal conclusions, interpretations of law, or commentary on the other side's case — it is not a valid affidavit at all. It fails two separate tests.

The precedent that sealed the rule

The G. Venkatakrishnam Raju court turned to Harish Loyalka And Another v. Dileep Nevatia And Others for guidance. That judgment had laid down the principle with unusual clarity: evidence-in-chief must match the pleadings (the written statements filed at the start of the case) and cannot be presented as arguments or submissions.

The court in Harish Loyalka said, in terms the Andhra Pradesh High Court adopted as its own: "The provisions of Order 18 Rule 4 of the CPC require that the 'examination in chief' shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4."

In plain language: if the affidavit reads like a closing argument, it fails Order 19 Rule 3, which requires affidavits to be confined to facts the deponent (the person swearing the affidavit) can prove from their own knowledge. And it fails Order 18 Rule 4, which requires examination-in-chief to mirror what a live witness could say.

The Harish Loyalka judgment went further, digging into the procedural philosophy behind the rule. The court reasoned that an affidavit containing arguments subverts the entire trial process. Cross-examination — the defendant's right to test the plaintiff's story — becomes meaningless if the affidavit is a legal brief rather than a factual account. A defendant cannot cross-examine a legal conclusion. He can only cross-examine a fact. By slipping arguments into the affidavit, the plaintiff denies the defendant that right, and the court loses the ability to test the evidence through questioning.

This deeper reading of the precedent shows why the Andhra Pradesh High Court adopted it so firmly in G. Venkatakrishnam Raju. The rule is not a technicality. It is a protection of the adversarial process itself.

What happens when the court says no

The practical consequence is severe. If a party files an affidavit that contains arguments instead of facts, the court can reject it. That party may lose the right to begin, or may be forced to re-file a proper affidavit — delaying the case and potentially weakening their position.

For lawyers and litigants, the message from the Andhra Pradesh High Court is simple: an affidavit in lieu of examination-in-chief is not a legal brief. It is not a place to argue why you should win. It is a place to state, in the first person, what the witness actually knows.

"I signed the agreement on 10 January 2022 at the defendant's office in the presence of Mr. Sharma" is evidence. "The defendant breached the agreement by failing to deliver goods on time" is an argument — unless the witness personally observed the failure to deliver.

The distinction is especially important in commercial cases, where parties often try to shortcut the process by filing lengthy affidavits that mix facts with legal conclusions. The Andhra Pradesh High Court has now made clear in G. Venkatakrishnam Raju that this shortcut is not allowed.

How the rule plays out in court: a worked illustration

Note: The following illustration is hypothetical and pedagogical. It is not drawn from the facts of any specific case before the Andhra Pradesh High Court, but is designed to show how the legal principle from the judgment operates in practice.

Consider a simple case. The plaintiff says the defendant borrowed money and never repaid it. The plaintiff files an affidavit in lieu of examination-in-chief. The affidavit says: "The defendant took a loan of Rs. 5 lakh from me on 1 June 2023. I handed over cash in my office. The defendant promised to repay within three months. Despite repeated requests, the defendant has not returned the money."

That is evidence. Every sentence states something the plaintiff personally did or witnessed — handing over cash, hearing a promise, making requests. The cash is counted on a wooden desk; the plaintiff's hands are steady as he recounts the transaction.

Now consider a different affidavit in the same case. It reads: "The defendant is liable to repay the loan because the transaction was a valid contract under the Indian Contract Act, 1872. The defendant's failure to repay constitutes a breach of contract. The plaintiff is entitled to interest at 18% per annum from the date of default."

That is argument. A witness in the box cannot say those things. A lawyer can argue them in court, but they cannot appear in the affidavit. The judge, reading such an affidavit, would set it aside. The courtroom would fall silent as she explains that the affidavit fails Order 18 Rule 4. The stack of papers on the bench — the plaintiff's entire case — would be sent back for re-filing. The silence after the judge set the affidavit aside hangs in the air, broken only by the rustle of papers being gathered.

Now add a second hypothetical, one that tests the boundary. Suppose the plaintiff's affidavit says: "I saw the defendant sign the loan agreement. I then handed over Rs. 5 lakh in cash. The defendant said, 'I will repay within three months.' I have not received any payment since." This is evidence — every sentence is a fact the plaintiff personally knows. But suppose the plaintiff's lawyer adds one more sentence: "The defendant's failure to repay is a breach of contract." That single sentence, embedded in an otherwise proper affidavit, could poison the entire document. The court may strike the offending sentence, or it may reject the entire affidavit if the argumentative material is woven into the factual narrative. The safest practice is to keep every sentence strictly factual.

The plaintiff still has the right to begin. But that right comes with a duty: to begin with facts, not arguments.

THE PLAY: Before filing an affidavit in lieu of examination-in-chief, strip every sentence that tells the court what to decide — keep only what the witness personally saw, heard, or did.

The plaintiff still has the right to begin. But that right comes with a duty: to begin with facts, not arguments.