2003 (1) TMI 765 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of Order XVIII Rule 4 and Rule 5 of CPC regarding methods of recording evidence.
2. Applicability of Rule 4 to witnesses and parties.
3. Procedure for taking affidavits on record in appealable and non-appealable cases.
4. Restrictions and conditions for affidavits in examination-in-chief.
5. Role of the court in directing oral testimony and recording evidence.

Issue-Wise Detailed Analysis:

1. Interpretation of Order XVIII Rule 4 and Rule 5 of CPC regarding methods of recording evidence:
The petitioner challenged the trial court's order rejecting the production of evidence in the form of an affidavit under Order XVIII Rule 4 of CPC. The court examined whether Rules 4 and 5 prescribe different methods for recording evidence and in what circumstances these methods apply. Rule 4 mandates that "in every case, the examination in chief of a witness shall be on affidavit," without distinguishing between appealable and non-appealable cases. Rule 5, however, specifies that in appealable cases, evidence must be recorded in the presence of the judge, either in writing, dictated, or mechanically. The court concluded that while Rule 4 allows for affidavits in examination-in-chief in all cases, Rule 5 must be followed for recording evidence in appealable cases.

2. Applicability of Rule 4 to witnesses and parties:
The court addressed the contention that Rule 4 applies only to witnesses and not to parties. It was clarified that the term "witnesses" in Rule 4 includes parties to the suit, as evident from Rule 3A of Order XVIII and Rule 21 of Order XVI, which treat parties as witnesses when they testify in support of their case. The court held that the expression "witness" in Rule 4 should be interpreted broadly to include all persons, including parties to the suit, who provide testimony.

3. Procedure for taking affidavits on record in appealable and non-appealable cases:
The court explained that in appealable cases, affidavits for examination-in-chief cannot be admitted as evidence unless the deponent confirms the contents under oath in the witness box, following Rule 5. In non-appealable cases, affidavits can be taken on record by recording a memorandum under Rule 13 of Order XVIII. The procedure for cross-examination in both types of cases must comply with Sub-rule 2 of Rule 4, read with Rule 13 for non-appealable cases and Rule 5 for appealable cases.

4. Restrictions and conditions for affidavits in examination-in-chief:
The court emphasized that affidavits must be based on the deponent's personal knowledge or information from disclosed sources, as per Rules 1 and 3 of Order XIX of CPC. Affidavits should be provided to the opposite party well in advance to avoid prejudice and allow for cross-examination preparation. Failure to provide advance copies may lead the court to order oral testimony instead of accepting the affidavit.

5. Role of the court in directing oral testimony and recording evidence:
The court highlighted that while affidavits are generally allowed to expedite proceedings, the court retains discretion to order oral testimony in special circumstances, such as when dealing with blind or illiterate witnesses. The court can also appoint commissioners to record evidence outside the courtroom, as per Rules 19 of Order XVI and Rule 1 of Order XXVI. The court must exercise this discretion judiciously, considering the facts of each case.

Conclusion:
The court quashed the trial court's order, allowing the petitioner to submit examination-in-chief affidavits with advance copies to the respondents, who may cross-examine the witnesses. The decision applies prospectively and does not affect evidence already recorded. The judgment underscores the importance of interpreting procedural rules to expedite case disposal while ensuring fairness and adherence to legislative intent.