Your affidavit in court can't contain arguments or hearsay, Bombay HC says

You file an affidavit as your evidence. The judge says: 'This is not evidence, it's an argument.' What happens next?

In a Mumbai courtroom, a lawyer stood before Justice G. S. Patel of the Bombay High Court, holding a stack of affidavits. The documents were supposed to be the witness's evidence — the story they would tell the court under oath. But the judge had read them. And something was wrong.

The affidavits contained arguments. Submissions. Hearsay. Gossip, even. The kind of material that belongs in a lawyer's closing speech, not in a witness's sworn testimony. The question before the court was deceptively simple: can an affidavit filed as evidence contain anything other than what the witness personally knows?

When the affidavit became a speech

The case was Harish Loyalka v. Dileep Nevatia. The dispute itself — between two private parties — was less important than the procedural question it raised. Under Order 18 Rule 4 of the Code of Civil Procedure, 1908 (the rule that allows a witness to submit a written affidavit instead of giving oral testimony in court), parties had filed affidavits as their examination-in-chief (the first stage of witness testimony, where the witness presents their side).

But when Justice Patel examined these affidavits, they looked less like evidence and more like a lawyer's brief. They contained statements that the witness could not possibly have known firsthand. They included legal arguments dressed up as facts. They repeated what other people had told the witness — classic hearsay (second-hand information that the speaker cannot verify from personal knowledge).

The judge had to decide: should all of this be struck out?

What the Evidence Act actually says

The court went back to basics. Section 5 of the Indian Evidence Act, 1872, is one of the shortest and most absolute provisions in the statute. It says, in plain language, that evidence may be given only of "facts in issue" (the facts that must be proved to win the case) or "relevant facts" — and of no other.

This is not a suggestion. It is a hard rule. A witness cannot walk into court and say anything they please. They can only speak to what they personally saw, heard, or did. Everything else — opinions, conclusions, things someone else told them — is inadmissible.

The court held that an affidavit filed under Order 18 Rule 4 must follow the same rule. It can only contain material that would be properly admissible if the witness were standing in the witness box, speaking aloud. If a statement would be objected to in oral testimony, it has no place in an affidavit either.

Why hearsay was the real problem

The Bombay High Court zeroed in on hearsay. The rule against hearsay (a statement made by someone who is not in court, repeated by a witness who cannot be cross-examined about it) exists because the opposing party has no way to test the truth of that statement. If A says to B, "I saw the defendant sign the contract," and B repeats this in court, the defendant cannot cross-examine A — because A is not there. B's testimony is worthless as proof.

The court observed that evidence must come from a person who is "involved in and familiar with the transaction." The witness must have direct knowledge — what they saw with their own eyes, heard with their own ears, or did with their own hands. Only then does the rule against hearsay not "kick in," as the judgment put it.

Material that is "ex facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments" must be excluded, the court held. The phrase "ex facie" means "on the face of it" — if a judge can see, just by reading the affidavit, that a statement is inadmissible, it must be struck out then and there.

The practical fallout for every litigant

This ruling changes how lawyers draft affidavits. Until now, many practitioners treated the affidavit as a free-form document — a place to tell the client's story in the most persuasive way possible, mixing facts with arguments and conclusions. The Bombay High Court has now made clear: that approach is wrong.

An affidavit of evidence must read like a police officer's diary — only what the witness actually did, saw, or heard. No "I believe that the defendant acted fraudulently." No "The plaintiff's conduct shows bad faith." No "My brother told me that the defendant admitted the debt." All of that is inadmissible.

If a lawyer files an affidavit containing such material, the opposing party can now move to strike it out. The judge will read it, identify the offending paragraphs, and order them removed. The witness will then have to testify only on what remains — or the party will have to file a fresh, compliant affidavit.

THE PLAY: Before filing any evidence affidavit, read every sentence and ask: "Can this witness be cross-examined on this statement?" If the answer is no, strike it out.

A different trap: the thirty-year-old document

Around the same time, the Supreme Court dealt with a related problem in Gangamma v. Shivalingaiah. The question was different, but the principle was the same: courts must not let evidence rules expand beyond what the statute allows.

Section 90 of the Evidence Act creates a special rule for old documents. If a document is at least thirty years old and comes from "proper custody" (a place where it would naturally be kept), the court can presume that the signature, handwriting, and execution of the document are genuine. This is a practical rule — after thirty years, the original signatories may be dead, and witnesses may be gone. The law relaxes the burden of proof.

But the High Court in that case had gone further. It had presumed not just that the document was signed by the right person, but that everything written inside the document — the "recitals" (the statements of fact contained in the document) — was also true.

When the Supreme Court drew the line

The Supreme Court reversed the High Court in clear terms. Section 90, the court said, "nowhere provides that the authenticity of the recitals contained in any document is presumed to be correct." The presumption is limited to the formality of the document — the signature, the handwriting, the fact that it was properly executed. It does not extend to the truth of what the document says.

This distinction matters. A deed of sale from 1985 may be genuine — signed by the right person, properly witnessed. But that does not mean the description of the property boundaries in the deed is accurate. It does not mean the recital about payment of consideration is true. Those are separate facts that must be proved by other evidence.

The court called the High Court's error "manifest" — obvious and serious. Even if a document's execution is proven, the court said, "this fact by itself cannot lead to a presumption that the recitals contained therein are also correct."

What both cases teach together

Two courts, two different provisions, one underlying message: evidence rules are not suggestions. They are boundaries that define what a court can and cannot consider.

The Bombay High Court in Harish Loyalka reminded litigants that an affidavit is not a free pass to argue. The Supreme Court in Gangamma reminded courts that a presumption about a document's age does not become a presumption about its contents.

For the practising lawyer, the lesson is uncomfortable but necessary. The days of the "kitchen sink" affidavit — throw everything in, let the judge sort it out — are over. At least in the Bombay High Court, and likely in courts across the country that follow this reasoning, evidence must be precise, personal, and provable.

The judge looked at the affidavit and said: this is not evidence, it's an argument. The party had to start over.