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TMI Blog2003 (1) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... of Order XVIII prescribes two different methods of recording of evidence, and if so, what are those methods? In what circumstances those different methods are to be followed? Whether the provisions of law relating to recording of examination-in-chief in the form of affidavit under Rule 4 apply only to depositions of witnesses and not those of the parties to the suit? Are there any restrictions to be observed while preparing the affidavit of examination-in-chief of the witness? 3. While challenging the impugned order, drawing attention to various provisions of law contained in Order XVIII of the CPC, it was sought to be contended that with the wrong interpretation of the provisions of law contained in Rules 4 and 5 of Order XVIII and considering the real intention of the legislature behind the amendment to the said Rule 4 thereof, on account of impugned order, the very purpose of the amendment has been rendered meaningless. According to the learned Advocate for the petitioner proper reading of Rules 4 and 5 of the said Order XVIII is necessary to give full effect to the intention of the legislature and to expedite the disposal of the cases, the same being the object behind the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealable cases, impliedly it makes exception to Rule 4 in the appealable cases and therefore the recording of evidence in the appealable cases has to be in the presence of the presiding officer of the Judge and no part of such evidence of witness can be allowed to be placed on record in the form of affidavit as a matter of right by taking recourse to the provisions of law contained in Rule 4. 6. The Rule 5 of Order XVIII reads as under:- "How Evidence shall be taken in appealable cases: In cases in which an appeal is allowed, the evidence of each witness shall be - (a) taken down in language of the Court (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or, (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge. Perusal of Rule 5 quoted above reveals that it speaks of the method to be used recording of evidence in the court, the necessity of the evidence being in writing by or in the presence of presiding officer or the Judge or on being dictated by the Judge to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure described under Rule 5 is to be followed in the appealable cases. In non appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in Rule 13 of Order XVIII. In other words, mere production of the affidavit by the witness will empower the court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to Rule 13 of Order XVIII in all cases, except in the appealable cases wherein it will be necessary for the Court to record evidence of production of the affidavit in respect of examination in chief by asking the deponent to produce such affidavit in accordance with Rule 5 of Order XVIII. Undoubtedly, in both the cases, for the purpose of cross-examination, the court has to follow the procedure prescribed under Sub-rule 2 of Rule 4 read with Rule 13 in case of non-appealable cases and the procedure prescribed under Sub-rule 2 of Rule 4 read with Rule 5 in appealable cases. 8. In other words, in the appealable cases though the examination in chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Rules 4 and 5 on being read as above, it is to be held that in each and every case, the evidence in examination in chief before the trial court can be in the form of affidavit, the only difference to be observed will be in the procedure of taking such affidavit on record and in the appealable cases it has to be taking resort to the provisions of Rule 5 and in other cases to Rule 13. 11. Undoubtedly, prior to 1.7.2002, the affidavit evidence could not have been produced as a matter of right and without the leave of the court. A specific permission in that regard was required to be obtained in terms of the provisions of law contained in Order 19 Rule 1 of CPC (vide Sudha Devi v. M.P. Narayanan reported in [1988] 3 SCR 756 and Jagdish v. Premlata Rai. In fact, the provision regarding power to grant such leave is to be found in Section 30(c) of CPC which provides thus:- "30. Power to order discovery and the like. Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,- (a) ..... (b) ..... (c) order any fact to be proved by affidavit. Further para 253 of Chapter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not arise either in appealable cases as well as in non appealable cases and the court will have to follow the procedure prescribed under Rule 5 in case of appealable case or under Rule 13 in case of non appealable cases even in case of recording of examination in chief of the witnesses. Similarly, in case of illiterate person the court can insist for examination of such person by adhering to provision of Rule 5 in appealable cases and Rule 13 in non appealable cases, irrespective of the fact that parties have produced affidavit in terms of Rule 4 or not. It will be entirely in the discretion of the Court to pass an appropriate order and insist for oral testimony of such witness irrespective of affidavit of such person being filed. There may be a case where it is impracticable or impossible to insist the presence of the witness in the court for recording of evidence. In this regard, reference can be made to Rule 19 of Order XVI and Rule 1 of Order XXVI of the Code of Civil Procedure. The Rule 19 of Order XVI read thus:- "No witness to be ordered to attend in person unless resident within certain limits - No one shall be ordered to attend in person to give evidence unless h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hering to the procedure prescribed under Rule 4(1) of Order XVIII. Rule 14, Order XVI empowers the court to summon and examine any witness of its own motion or to give evidence or produce documents subject to other provisions of the Code or other laws relating to attendance or appearance of witnesses; however, in those cases also, there need not be compliance of Rule 4(1) of Order XVIII. 15. Even in appealable cases recording of evidence of parties and the witnesses is permissible beyond the precincts of the court, and that is permissible in relation to examination in chief as well as cross-examination. As regards the witnesses who have filed their affidavits and are in attendance in the court for the purpose of cross-examination, the court is empowered to appoint Commissioner to record their cross-examination and re-examination in terms of proviso to Sub-rule 2 of Rule 4, albeit after taking into account the relevant factors as it think fit for ordering the appointment of such Commissioner. In case of witnesses whose affidavits are not filed in terms of Rule 4, even their evidence can be ordered to be recorded by appointing Commissioner in terms of Rule 19 of Order XVII of CPC. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued, the court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in court for his examination. In appropriate case, the court can direct the summons witness to file an affidavit by way of examination-in-chief. In other words, with regard to the summoned witnesses the principle incorporated in Order 18 Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in court for recording of his evidence is a matter to be decided by the court in its discretion having regard to the facts of each case. Order 18 Rule 4(2) gives the court the power to decide as to whether evidence of a witness shall be taken either by the court or by the Commissioner. An apprehension was raised to the effect that the court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in court. We do not think that this is the correct interpretation of Sub-rule (2) of Rule 4. Under the said sub-rule, the court has the power to direct either all the evidence being recorded in court or all the evidence being re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned- where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable." Rule 3A therefore, makes it abundantly clear that when a party examines itself before the court in support of his or her case, he or she assumes the character of witness and the testimony of the party and that of his witness in support of his or her case, are all referred to as those of "the witnesses" in relation to his case. That apart, the sub-title in relation to the amended Rule 4 specifically speaks of "Recording of evidence" and is not restricted to those persons other than the parties to the suit. In fact, the expression used in Rules 5, 8 and 13 is similar to that of Rule 4. The expression "witness" cannot be read in narrow or restricted sense as sought to be read by the respondent but it has to be read in broad sense to include all the persons, including all the parties to the suit who are examined in support of the case pleaded by either of the parties. Indeed Order XVIII is not restricted to the recording of evidence of the persons other than the parties to the suit but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes its evidence. 19. As regards the evidence in relation to documents, undoubtedly, though such documents are produced alongwith the affidavits the admissibility thereof is to be decided in accordance with the provisions of law contained in Order 13 Rule 4 thereof. Such decision has necessarily to be at the time of taking the affidavit alongwith such documents on record and before such documents are being marked as exhibits in evidence as has already been held by this court in un-reported decision in the matter of Shri Durgashankar S. Trivedi and Ors. v. Shri Babubhai Bhulabhai Parekh in writ Petition No. 7094 of 2002 decided on 22nd January, 2003. 20. As regards the evidence in the form of affidavit it is also to be borne in mind that such evidence can only be in relation to the fact or the facts required to be proved by the parties in a suit. Affidavits by very nature are the statement of facts known to the deponent either on the basis of his personal knowledge or on account of information derived by him from certain records or received from some other source and it is necessary for the deponent in cases of statement of facts made on the basis of such information to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not appliable", and further that "But in cases where orders would be appealable, the evidence is to be recorded strictly as provided under Order 18 Rule 5." With utmost respect, I am unable to persuade myself to agree with this view expressed by the learned Single Judge of the Rajasthan High Court. The expressions used in Order 18 Rule 4 are "in every case..... shall be on affidavit....." The word 'shall' no doubt at times can mean may. However, bearing in mind intention of the legislature that the provisions have been incorporated for the specific purpose of avoiding delay and the experience having taught that the examination in chief on being recorded in the form of affidavit curtails the delay, certainly such expression has been used to allow the parties to lead the evidence in the form of affidavits. Besides, the very rule of interpretation referred to by the learned Single Judge of the Rajasthan High Court which was the law laid down by the Apex Court in Mor Modern Co-operative Transport Society Ltd., v. Financial Commissioner & Secretary to Govt. of Haryana and Anr. [2002] SUPP 1 SCR 87 requires consideration of "context in which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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