in case of blind person, in normal circumstances and till modern technology and the facilities are made available to the blind person as well as to the court, question of execution of affidavit of such person would not arise and it will be necessary for examination of such person before the court or the commissioner. In case of blind person therefore, question of adhering to Rule 4 of Order XVIII would 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.
R.M.S. Khandeparkar, J.
1. Heard learned Advocates for the parties:
Perused the records. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 20.8.2002 passed by the City Civil Court, Mumbai in S.C. Suit No. 7280/1998 rejecting the contention of the petitioner that petitioner can produce the evidence of the plaintiff in the form of affidavit under Order XVIII Rule 4 of CPC. The trial court has held that for the purpose of allowing the parties to produce the evidence in the form of affidavit, the suit must be of the type wherein evidence could be recorded in terms of un-amended Rule 4 of Order XVIII of CPC and not the suit to which Rule 5 of the Order XVIII is applicable. Therefore, the points which arise in this petition are whether Rules 4 and 5 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 amendment to Rule 4, the impugned order in the circumstances is contrary to the provisions of law and therefore, warrants interference in writ jurisdiction.
4. On the other hand, referring to the unreported decision of the Rajasthan High Court in Civil Revision Petition of 750 of 2002 delivered on 2.9.2002 it was submitted by the learned Advocate for the respondents that considering that provisions contained in Order XVIII Rule 5 apply to the appealable cases within the meaning of the said expression under the said rule, no fault can be found with the impugned order.
5. The Rule 4 of Order XVIII of the CPC stands amended with effect from 1.7.2002 and the Sub-rule 1 and 2 thereof read thus:-
"In every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence;
provided that where the documents are filed and parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it.
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit;
Undoubtedly, bare reading of Rule 4 of Order XVIII discloses that in every case where evidence is required to be recorded, the examination in chief of the witness is allowed to be produced in the form of affidavit, with copy thereof to the opposite party to enable the latter to cross-examine the witness. As far as the production of the affidavit of such person on record and the cross-examination by the opponent is concerned, the same is to be recorded either before the presiding officer of the court or before a Commissioner. The Sub-rule 1 or Rule 4 clearly uses the expression "in every case" in relation to recording of examination in chief in the form of affidavit. The said rule does not differentiate between the appealable and non appealable cases. However, the contention on behalf of the respondents is that since Rule 5 specifically provides the mode of recording of evidence in the appealable 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 recorded on type-writer or for the reasons to be recorded by the Judge, it could even be by utilisation of some mechanical device, but in the language of the court and in the presence of the Judge. Rule 5 neither makes any difference between examination in chief or cross-examination of the witness nor it makes any difference between the entire evidence in a case or part thereof. But, essentially it refers to recording of evidence produced before the court in the appealable cases. As far as non appealable cases are concerned, the recording can be in the form prescribed under Rule 13 of Order XVIII of CPC which reads thus:-
"In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record."
7. It is to be noted that the legislature being fully aware about the provision of law contained in Rule 5 which was already there even prior to the amendment to Rule 4, has amended the Rule 4 with effect from 1.7.2002 specifically providing thereunder that the examination in chief "in every case" shall be on affidavit. One has to bear in mind the decisions of the Apex Court in the case of Dadi Jagannadham v. Jammulu Ramulu reported in 2001 (7) SC 71 on the settled principles of interpretation of statutes that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intend to and the court as far as possible should adopt construction which will carry out obvious intention of legislature, and in East India Hotels Ltd., and Anr. v. Union of India and Anr. reported in (2001) 1 SCC 284 that "An act has to be read as a whole, the different provisions have to be harmonised and the effect has to be given to all of them". The harmonious reading of Rules 4 and 5 of Order XVIII would reveal that while in each and every case of recording of evidence, the examination in chief is to be permitted in the form of affidavit and while such evidence in the form of affidavit being taken on record, the procedure 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 ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. In non appealable cases however, the affidavit in relation to examination in chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, whereas in case of non appealable cases the court would be empowered to exercise its power under Rule 13.
9. In fact Rule 4, either unamended or amended makes no difference between appealable or non appealable cases in the matter of method of recording of evidence. Such differentiation is to be found in Rule 5 and 13. The Rule 4, prior to the amendment, provided that when witness would appear before the court, his testimony would require to be recorded in the presence of and under the personal direction of the Judge which was required to be done in appealable cases as well as in non appealable cases. Only method of recording testimony in appealable cases that was to be in terms of Rule 5 whereas in other cases in terms of Rule 13. Now, in terms of Rule 4, after its amendment, it provides that recording of evidence in relation to examination in chief shall be in all cases by way of affidavits. However, as already observed above, in appealable cases the same to be admitted in evidence or to be made part and parcel of the evidence by following the method prescribed under Rule 5 and in other cases, the one prescribed under Rule 13.
10. Experience has shown that by allowing the parties to place on record the examination in chief in the form of affidavit, saves lot of time of the Court, the litigants and the public. The provisions of law of procedure are to be read and interpreted, to give full effect to the intention of the legislature. The intention behind the amendment to Rule 4 is to curtail the delay in disposal of the suits. As the recording of evidence in the form of affidavit being in aid of avoiding delay in disposal of the suits, and there being no conflict disclosed between the provisions 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 affidavitory 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 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 of Civil Manual provides that-
"The attention of the court is drawn to the provisions of Order XVIII Rule 4 that witnesses are to be examined in the open court. The power under Section 30(c) (see Order XIX Rule 1) to order any particular fact or facts to be proved by affidavit or the reading of an affidavit or any witness at the hearing should be exercised only in special circumstances or as that rule declares "for sufficient reasons" which should always be specified in the order; there can be no general order for the admission of affidavits in suits or appeals."
12. Thus even prior to 1.7.2002 nothing prevented the court from allowing the parties to the suit and their witnesses to place on record the evidence pertaining to the examination in chief in the form of affidavits. Under un-amended Rule 4, there was no prohibition for allowing the parties or the witnesses to produce affidavit in relation to the examination in chief even in the appealable cases. Only change which has been brought about by way of amendment is that the procedure for production of evidence relating to examination in chief of the parties and their witnesses in the form of affidavit is made a normal rule to be followed in each and every case. No doubt, the rule is not without exception. Obviously, it is a rule of procedure.
13. The procedure is meant to help the parties to assist the Court to arrive at the appropriate decision on the dispute between the parties. The Court, therefore, is not prohibited from allowing and in a given case, even directing to record the oral testimony of a witness in the open court or before the Commissioner, for the reasons to be recorded in writing. The reason should disclose justification for such direction. The Court is not helpless to order the recording of evidence in any other form, even when situation demands or warrants. There may be cases where witness may be either a blind witness or a witness may be a illiterate one. Certainly in case of blind person, in normal circumstances and till modern technology and the facilities are made available to the blind person as well as to the court, question of execution of affidavit of such person would not arise and it will be necessary for examination of such person before the court or the commissioner. In case of blind person therefore, question of adhering to Rule 4 of Order XVIII would 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 he resides-
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than (one hundred) or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate) less than (five hundred kilometres) distance from the court-house;
(Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.)
The Rule 1 of Order XXVI read thus:-
1. Cases in which Court may issue commission to examine witness - Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it;
(Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded thinks it necessary so to do.
Explanation - The court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness)"
14. While considering the scope of Rule 4 of Order XVIII, it is necessary to take note of various other provisions of law relating to the examination of witnesses in the Civil Procedure Code. Rule 1(3) of Order XVI permits a party to the suit to obtain summons from the court for appearance of witnesses whereas Rule 1A thereof entitles the parties to bring any witness to give evidence or to produce documents. Obviously in case of the witnesses other than those who are mentioned in the list of witnesses submitted under Rule 1(1) of Order XVI, the party will have to show sufficient cause for omission to mention the name of such witnesses in the said list before being examined. Rule 7 of Order XVI empowers the court to require any person present in the court to give evidence or to produce any document in his possession, albeit, examination of such witness would be in the form of recording of testimony in terms of Rule 5 or Rule 13 of Order XVIII, as the case may be, without adhering 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 precints 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. This will apply not only to the witnesses whose names appear in the list of witnesses filed by the parties but also to those who have not been produced or have not appeared before the court, and will also apply to the witnesses who are present in the court. Of course, the order for the same will have to be reasoned order. At the same time, the court can also order recording of evidence in the open court instead of filing of the affidavit in respect of those witnesses who are present in the court either in answer to the summons issued for their presence in the court or those witnesses whose affidavits are not ready or are not filed in the court. The decision of the Apex Court in that regard is clear in Salem Advocate Bar Association v. Union of India .
16. The following observations by the Apex Court in Salem Advocate Bar Association's case (supra) are very relevant and to be borne in mind in relation to the matter in issue -
In Order 18. Rule 4 has been substituted and Sub-rule (1) provides that in every case examination-in-chief of the witness shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr. Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. It often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through court. Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule 1-A i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-chief is not to be recorded in court but shall be in the form of an affidavit.
In cases where the summons have to be issued under Order 16 Rule 1, there stringent provision of Order 18 Rule 4 may not apply. When summon are 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 recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word "mechanically" indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at lest an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage."
17. It was sought to be contended that the provisions contained in Rule 4 are applicable only to the evidence of witnesses and not to the parties since Rule 4 refer to "witnesses" and not to "the parties". The argument holds no water. Undoubtedly, un-amended Rule 4 referred to the expression "evidence of witnesses" and the amended rule also uses the expression "examination in chief of witnesses". It is also true that sub title in relation to the unamended Rule 4 was "witness to be examined in open court". However, in case of the amended Rule 4 it reads "recording of evidence". Besides, as regards the expression witness in the said rule, either in the unamended or amended, the reference thereof was and is not restricted to the persons other than the parties to the suit, but it also applied and applies to the parties themselves and this is abundantly clear from Rule 3A of Order XVIII and Rule 21 of Order XVI which were on the statute book even prior to amendment to Rule 4. Rule 3A of Order XVIII provides that:-
"Party to appear before other witnesses; when a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the court for the reason to be recorded, permits him to appear as his witness at a later stage.
Rule 21 of Order XVI reads thus:-
"Rules as to witnesses to apply to parties summoned- 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 sence 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 it prescribes the method of recording of evidence in all types of suits and of all the persons appearing to depose in relation to the issues in a suit and in favour of the case of either of the parties, as well as those who may appear or called upon to assist the court in order to enable the court to arrive at just the proper decision in a case. This position is made further clear from Rule 21 of Order XVI quoted above.
18. There is no doubt that the Rule 4 on the face of it nowhere speaks of the time or the stage at which the affidavit of examination-in-chief can be filed. Does it mean that such affidavit of a witness can be filed few minutes before the cross-examination of such witness begins? Certainly not, as it can invariably cause great prejudice to the opposite party who has to cross-examine such deponent. In all fairness, therefore, the copies of such affidavits will have to be furnished to the opposite party well in advance. It may not be however, appropriate for this Court to fix a time frame programme in general for furnishing such copies of the affidavits to the opposite party. It will depend on the facts and circumstances of each case and the trial Court in its discretion will have to fix the time for giving such copies in advance. However, under no circumstances, on account of failure to give advance copy of the affidavit, the parties shall be entitled to seek adjournment of the hearing of the suit. In case there is failure to give advance copy of the affidavit in examination in chief to the opposite party and grievance is made in that regard by the opposite party, certainly the Court can order examination in chief of such witness to be recorded in open Court or before the Commissioner as the case may be, ignoring or discarding the affidavit of such witness. However, it should depend upon judicious exercise of discretion by the Court in that regard and depending upon facts and circumstances in each cases. It is also to be noted ta tit is not necessary for the party to file affidavit of all the witnesses at one and the same time or day. This again would depend upon the number of witnesses and nature of testimony of each of the witnesses as well as the discretion to be exercised by the Court in that regard. It cannot be disputed that question of filing of affidavit of witnesses by the opposite party cannot be ordered unless the first party concludes 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 the source of information otherwise the statement based on information can have no evidentiary value. Infact, the law on the point of the contents of the affidavit is very clear from Rules 1 and 3 of Order XIX of CPC. The Rule 1 read that "Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable." The Rule 3(1) thereof provides that "Affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except or inter-locutory applications, on which statement of his belief may be admitted; provided that the grounds thereof are stated."
21. In case of evidence in the form of affidavit in a suit to be considered for the decision on merits, it should confine to the facts known to the deponent either of his personal knowledge or based on information which the deponent has reason to believe. Albeit, in later case the source of information as well as the reason to believe has to be disclosed in the affidavit, otherwise, the statement based on information without disclosure of the source and the reason to believe cannot have any evidentiary value. There can also be facts based on belief. However, grounds of belief are necessarily to be stated wit sufficient particulars to enable the court to judge whether it would be safe to rely upon the deponent's belief. (Vide : Barium Chemicals Ltd., v. Company Law Board and in Sukhwinder
Pal Bipan Kumar v. State of Punjab ).
22. Before parting with the matter it is necessary to refer to the unreported decision of the Rajasthan High Court on the point in issue relied upon by the Advocate for the respondent. In the said decision it has been held that "as there is no change in Order 18 Rule 5, it is difficult to hold that even in cases where the ultimate order shall be appelable, the evidence can be recorded as provided either under Order 18 Rule 4 or Order 18 Rule 13. Giving any other interpretation would render Rule 5 thereof nugatory and such an interpretation is not permissible, and further it has been held that "the words" in every case", contained on Rule 4 of Order 18 have to be understood in a limited sense that every case wherein ultimate order is not appelable", 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 pursuade 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' nodoubt 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.
requires consideration of "context in which the provision has been enacted". Apparently, the provision has been enacted with the sole purpose of curtailing the delay and it cannot be disputed tat allowing the parties to place on record examination in chief in the form of affidavit would certainly curtail delay and avoide consumption of the court's time for recording of such evidence in examination in chief. Besides, the provision for allowing the parties to lead evidence in examination in chief in the form of affidavit has been incorporated while retaining the provisions of law in Rule 5. Therefore, the harmonious reading of both the provisions would certainly lead to the conclusions drawn herein above.
23. The trial court has rejected the evidence in the form of affidavits only on the ground that it is the appelable case and the provisions of law contained in Rule 4 of Order XVIII of CPC do not apply to such cases, which finding in contrary to the provisions of law as seen above and therefore, the impugned order cannot be sustained.
24. Needless to say that the decision herein apart from the parties to the petition, would apply prospectively and it will not affect in any manner, the evidence already recorded by following the procedure otherwise than as stated herein above.
25. In the result therefore, the impugned order therefore, is quashed and set aside and the petitioner is permitted to place examination in chief of its witnesses in the form of affidavits with advance copies thereof to the respondents, with the liberty to the respondents to cross-examine such witnesses, and the petition is accordingly allowed in above terms and rule is made absolute accordingly with no order as to costs. Certified copy expedited.
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Bombay High Court
F.D.C. Limited vs Federation Of Medical ... on 24 January, 2003
Equivalent citations: AIR 2003 Bom 371, 2003 (5) BomCR 376, 2003 (3) MhLj 327
Bench: R Khandeparkar
JUDGMENTR.M.S. Khandeparkar, J.
1. Heard learned Advocates for the parties:
Perused the records. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 20.8.2002 passed by the City Civil Court, Mumbai in S.C. Suit No. 7280/1998 rejecting the contention of the petitioner that petitioner can produce the evidence of the plaintiff in the form of affidavit under Order XVIII Rule 4 of CPC. The trial court has held that for the purpose of allowing the parties to produce the evidence in the form of affidavit, the suit must be of the type wherein evidence could be recorded in terms of un-amended Rule 4 of Order XVIII of CPC and not the suit to which Rule 5 of the Order XVIII is applicable. Therefore, the points which arise in this petition are whether Rules 4 and 5 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 amendment to Rule 4, the impugned order in the circumstances is contrary to the provisions of law and therefore, warrants interference in writ jurisdiction.
4. On the other hand, referring to the unreported decision of the Rajasthan High Court in Civil Revision Petition of 750 of 2002 delivered on 2.9.2002 it was submitted by the learned Advocate for the respondents that considering that provisions contained in Order XVIII Rule 5 apply to the appealable cases within the meaning of the said expression under the said rule, no fault can be found with the impugned order.
5. The Rule 4 of Order XVIII of the CPC stands amended with effect from 1.7.2002 and the Sub-rule 1 and 2 thereof read thus:-
"In every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence;
provided that where the documents are filed and parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it.
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit;
Undoubtedly, bare reading of Rule 4 of Order XVIII discloses that in every case where evidence is required to be recorded, the examination in chief of the witness is allowed to be produced in the form of affidavit, with copy thereof to the opposite party to enable the latter to cross-examine the witness. As far as the production of the affidavit of such person on record and the cross-examination by the opponent is concerned, the same is to be recorded either before the presiding officer of the court or before a Commissioner. The Sub-rule 1 or Rule 4 clearly uses the expression "in every case" in relation to recording of examination in chief in the form of affidavit. The said rule does not differentiate between the appealable and non appealable cases. However, the contention on behalf of the respondents is that since Rule 5 specifically provides the mode of recording of evidence in the appealable 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 recorded on type-writer or for the reasons to be recorded by the Judge, it could even be by utilisation of some mechanical device, but in the language of the court and in the presence of the Judge. Rule 5 neither makes any difference between examination in chief or cross-examination of the witness nor it makes any difference between the entire evidence in a case or part thereof. But, essentially it refers to recording of evidence produced before the court in the appealable cases. As far as non appealable cases are concerned, the recording can be in the form prescribed under Rule 13 of Order XVIII of CPC which reads thus:-
"In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record."
7. It is to be noted that the legislature being fully aware about the provision of law contained in Rule 5 which was already there even prior to the amendment to Rule 4, has amended the Rule 4 with effect from 1.7.2002 specifically providing thereunder that the examination in chief "in every case" shall be on affidavit. One has to bear in mind the decisions of the Apex Court in the case of Dadi Jagannadham v. Jammulu Ramulu reported in 2001 (7) SC 71 on the settled principles of interpretation of statutes that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intend to and the court as far as possible should adopt construction which will carry out obvious intention of legislature, and in East India Hotels Ltd., and Anr. v. Union of India and Anr. reported in (2001) 1 SCC 284 that "An act has to be read as a whole, the different provisions have to be harmonised and the effect has to be given to all of them". The harmonious reading of Rules 4 and 5 of Order XVIII would reveal that while in each and every case of recording of evidence, the examination in chief is to be permitted in the form of affidavit and while such evidence in the form of affidavit being taken on record, the procedure 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 ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. In non appealable cases however, the affidavit in relation to examination in chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, whereas in case of non appealable cases the court would be empowered to exercise its power under Rule 13.
9. In fact Rule 4, either unamended or amended makes no difference between appealable or non appealable cases in the matter of method of recording of evidence. Such differentiation is to be found in Rule 5 and 13. The Rule 4, prior to the amendment, provided that when witness would appear before the court, his testimony would require to be recorded in the presence of and under the personal direction of the Judge which was required to be done in appealable cases as well as in non appealable cases. Only method of recording testimony in appealable cases that was to be in terms of Rule 5 whereas in other cases in terms of Rule 13. Now, in terms of Rule 4, after its amendment, it provides that recording of evidence in relation to examination in chief shall be in all cases by way of affidavits. However, as already observed above, in appealable cases the same to be admitted in evidence or to be made part and parcel of the evidence by following the method prescribed under Rule 5 and in other cases, the one prescribed under Rule 13.
10. Experience has shown that by allowing the parties to place on record the examination in chief in the form of affidavit, saves lot of time of the Court, the litigants and the public. The provisions of law of procedure are to be read and interpreted, to give full effect to the intention of the legislature. The intention behind the amendment to Rule 4 is to curtail the delay in disposal of the suits. As the recording of evidence in the form of affidavit being in aid of avoiding delay in disposal of the suits, and there being no conflict disclosed between the provisions 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 affidavitory 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 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 of Civil Manual provides that-
"The attention of the court is drawn to the provisions of Order XVIII Rule 4 that witnesses are to be examined in the open court. The power under Section 30(c) (see Order XIX Rule 1) to order any particular fact or facts to be proved by affidavit or the reading of an affidavit or any witness at the hearing should be exercised only in special circumstances or as that rule declares "for sufficient reasons" which should always be specified in the order; there can be no general order for the admission of affidavits in suits or appeals."
12. Thus even prior to 1.7.2002 nothing prevented the court from allowing the parties to the suit and their witnesses to place on record the evidence pertaining to the examination in chief in the form of affidavits. Under un-amended Rule 4, there was no prohibition for allowing the parties or the witnesses to produce affidavit in relation to the examination in chief even in the appealable cases. Only change which has been brought about by way of amendment is that the procedure for production of evidence relating to examination in chief of the parties and their witnesses in the form of affidavit is made a normal rule to be followed in each and every case. No doubt, the rule is not without exception. Obviously, it is a rule of procedure.
13. The procedure is meant to help the parties to assist the Court to arrive at the appropriate decision on the dispute between the parties. The Court, therefore, is not prohibited from allowing and in a given case, even directing to record the oral testimony of a witness in the open court or before the Commissioner, for the reasons to be recorded in writing. The reason should disclose justification for such direction. The Court is not helpless to order the recording of evidence in any other form, even when situation demands or warrants. There may be cases where witness may be either a blind witness or a witness may be a illiterate one. Certainly in case of blind person, in normal circumstances and till modern technology and the facilities are made available to the blind person as well as to the court, question of execution of affidavit of such person would not arise and it will be necessary for examination of such person before the court or the commissioner. In case of blind person therefore, question of adhering to Rule 4 of Order XVIII would 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 he resides-
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than (one hundred) or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate) less than (five hundred kilometres) distance from the court-house;
(Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.)
The Rule 1 of Order XXVI read thus:-
1. Cases in which Court may issue commission to examine witness - Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it;
(Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded thinks it necessary so to do.
Explanation - The court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness)"
14. While considering the scope of Rule 4 of Order XVIII, it is necessary to take note of various other provisions of law relating to the examination of witnesses in the Civil Procedure Code. Rule 1(3) of Order XVI permits a party to the suit to obtain summons from the court for appearance of witnesses whereas Rule 1A thereof entitles the parties to bring any witness to give evidence or to produce documents. Obviously in case of the witnesses other than those who are mentioned in the list of witnesses submitted under Rule 1(1) of Order XVI, the party will have to show sufficient cause for omission to mention the name of such witnesses in the said list before being examined. Rule 7 of Order XVI empowers the court to require any person present in the court to give evidence or to produce any document in his possession, albeit, examination of such witness would be in the form of recording of testimony in terms of Rule 5 or Rule 13 of Order XVIII, as the case may be, without adhering 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 precints 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. This will apply not only to the witnesses whose names appear in the list of witnesses filed by the parties but also to those who have not been produced or have not appeared before the court, and will also apply to the witnesses who are present in the court. Of course, the order for the same will have to be reasoned order. At the same time, the court can also order recording of evidence in the open court instead of filing of the affidavit in respect of those witnesses who are present in the court either in answer to the summons issued for their presence in the court or those witnesses whose affidavits are not ready or are not filed in the court. The decision of the Apex Court in that regard is clear in Salem Advocate Bar Association v. Union of India .
16. The following observations by the Apex Court in Salem Advocate Bar Association's case (supra) are very relevant and to be borne in mind in relation to the matter in issue -
In Order 18. Rule 4 has been substituted and Sub-rule (1) provides that in every case examination-in-chief of the witness shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr. Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. It often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through court. Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule 1-A i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-chief is not to be recorded in court but shall be in the form of an affidavit.
In cases where the summons have to be issued under Order 16 Rule 1, there stringent provision of Order 18 Rule 4 may not apply. When summon are 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 recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word "mechanically" indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at lest an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage."
17. It was sought to be contended that the provisions contained in Rule 4 are applicable only to the evidence of witnesses and not to the parties since Rule 4 refer to "witnesses" and not to "the parties". The argument holds no water. Undoubtedly, un-amended Rule 4 referred to the expression "evidence of witnesses" and the amended rule also uses the expression "examination in chief of witnesses". It is also true that sub title in relation to the unamended Rule 4 was "witness to be examined in open court". However, in case of the amended Rule 4 it reads "recording of evidence". Besides, as regards the expression witness in the said rule, either in the unamended or amended, the reference thereof was and is not restricted to the persons other than the parties to the suit, but it also applied and applies to the parties themselves and this is abundantly clear from Rule 3A of Order XVIII and Rule 21 of Order XVI which were on the statute book even prior to amendment to Rule 4. Rule 3A of Order XVIII provides that:-
"Party to appear before other witnesses; when a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the court for the reason to be recorded, permits him to appear as his witness at a later stage.
Rule 21 of Order XVI reads thus:-
"Rules as to witnesses to apply to parties summoned- 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 sence 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 it prescribes the method of recording of evidence in all types of suits and of all the persons appearing to depose in relation to the issues in a suit and in favour of the case of either of the parties, as well as those who may appear or called upon to assist the court in order to enable the court to arrive at just the proper decision in a case. This position is made further clear from Rule 21 of Order XVI quoted above.
18. There is no doubt that the Rule 4 on the face of it nowhere speaks of the time or the stage at which the affidavit of examination-in-chief can be filed. Does it mean that such affidavit of a witness can be filed few minutes before the cross-examination of such witness begins? Certainly not, as it can invariably cause great prejudice to the opposite party who has to cross-examine such deponent. In all fairness, therefore, the copies of such affidavits will have to be furnished to the opposite party well in advance. It may not be however, appropriate for this Court to fix a time frame programme in general for furnishing such copies of the affidavits to the opposite party. It will depend on the facts and circumstances of each case and the trial Court in its discretion will have to fix the time for giving such copies in advance. However, under no circumstances, on account of failure to give advance copy of the affidavit, the parties shall be entitled to seek adjournment of the hearing of the suit. In case there is failure to give advance copy of the affidavit in examination in chief to the opposite party and grievance is made in that regard by the opposite party, certainly the Court can order examination in chief of such witness to be recorded in open Court or before the Commissioner as the case may be, ignoring or discarding the affidavit of such witness. However, it should depend upon judicious exercise of discretion by the Court in that regard and depending upon facts and circumstances in each cases. It is also to be noted ta tit is not necessary for the party to file affidavit of all the witnesses at one and the same time or day. This again would depend upon the number of witnesses and nature of testimony of each of the witnesses as well as the discretion to be exercised by the Court in that regard. It cannot be disputed that question of filing of affidavit of witnesses by the opposite party cannot be ordered unless the first party concludes 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 the source of information otherwise the statement based on information can have no evidentiary value. Infact, the law on the point of the contents of the affidavit is very clear from Rules 1 and 3 of Order XIX of CPC. The Rule 1 read that "Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable." The Rule 3(1) thereof provides that "Affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except or inter-locutory applications, on which statement of his belief may be admitted; provided that the grounds thereof are stated."
21. In case of evidence in the form of affidavit in a suit to be considered for the decision on merits, it should confine to the facts known to the deponent either of his personal knowledge or based on information which the deponent has reason to believe. Albeit, in later case the source of information as well as the reason to believe has to be disclosed in the affidavit, otherwise, the statement based on information without disclosure of the source and the reason to believe cannot have any evidentiary value. There can also be facts based on belief. However, grounds of belief are necessarily to be stated wit sufficient particulars to enable the court to judge whether it would be safe to rely upon the deponent's belief. (Vide : Barium Chemicals Ltd., v. Company Law Board and in Sukhwinder
Pal Bipan Kumar v. State of Punjab ).
22. Before parting with the matter it is necessary to refer to the unreported decision of the Rajasthan High Court on the point in issue relied upon by the Advocate for the respondent. In the said decision it has been held that "as there is no change in Order 18 Rule 5, it is difficult to hold that even in cases where the ultimate order shall be appelable, the evidence can be recorded as provided either under Order 18 Rule 4 or Order 18 Rule 13. Giving any other interpretation would render Rule 5 thereof nugatory and such an interpretation is not permissible, and further it has been held that "the words" in every case", contained on Rule 4 of Order 18 have to be understood in a limited sense that every case wherein ultimate order is not appelable", 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 pursuade 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' nodoubt 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.
requires consideration of "context in which the provision has been enacted". Apparently, the provision has been enacted with the sole purpose of curtailing the delay and it cannot be disputed tat allowing the parties to place on record examination in chief in the form of affidavit would certainly curtail delay and avoide consumption of the court's time for recording of such evidence in examination in chief. Besides, the provision for allowing the parties to lead evidence in examination in chief in the form of affidavit has been incorporated while retaining the provisions of law in Rule 5. Therefore, the harmonious reading of both the provisions would certainly lead to the conclusions drawn herein above.
23. The trial court has rejected the evidence in the form of affidavits only on the ground that it is the appelable case and the provisions of law contained in Rule 4 of Order XVIII of CPC do not apply to such cases, which finding in contrary to the provisions of law as seen above and therefore, the impugned order cannot be sustained.
24. Needless to say that the decision herein apart from the parties to the petition, would apply prospectively and it will not affect in any manner, the evidence already recorded by following the procedure otherwise than as stated herein above.
25. In the result therefore, the impugned order therefore, is quashed and set aside and the petitioner is permitted to place examination in chief of its witnesses in the form of affidavits with advance copies thereof to the respondents, with the liberty to the respondents to cross-examine such witnesses, and the petition is accordingly allowed in above terms and rule is made absolute accordingly with no order as to costs. Certified copy expedited.
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