Learned Senior Counsel appearing for the appellant is justified in contending, placing reliance on the judgment of the Apex Court in the matter of Ameer Trading Corporation Ltd. (supra), that in appealable cases, the examination-in-chief of the witness is permissible to be produced in the form of affidavit and such affidavit cannot be ordered to form part of evidence unless deponent thereof enters the witness box and affirms that contents of the affidavit are as per his say and affidavit is under his signature. As has been observed by the Apex Court in the judgment cited supra, Rules 4 and 5 are required to be harmoniously construed and both the provisions are required to be given effect to and that Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.
18 In the instant matter, apart from the failure of plaintiff and his witness affirming on oath before the Court contents of the affidavit and signature thereon, have also failed to prove the documents placed on record, in accordance with law. In the absence of proof of documents and more specifically the a Learned Senior Counsel appearing for the appellant is justified in contending, placing reliance on the judgment of the Apex Court in the matter of Ameer Trading Corporation Ltd. (supra), that in appealable cases, the examination-in-chief of the witness is permissible to be produced in the form of affidavit and such affidavit cannot be ordered to form part of evidence unless deponent thereof enters the witness box and affirms that contents of the affidavit are as per his say and affidavit is under his signature. As has been observed by the Apex Court in the judgment cited supra, Rules 4 and 5 are required to be harmoniously construed and both the provisions are required to be given effect to and that Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.
18 In the instant matter, apart from the failure of plaintiff and his witness affirming on oath before the Court contents of the affidavit and signature thereon, have also failed to prove the documents placed on record, in accordance with law. In the absence of proof of documents and more specifically the agreement to sell entered into between the plaintiff and defendant, decree of specific performance of contract could not have been awarded in favour of the plaintiff.
19 In the facts and circumstances of this case, it would be just and proper to extend an opportunity to the plaintiff to cure the procedural deficiencies appearing in the evidence and remand the matter to the trial Court, would meet the ends of justice.
Bombay High Court
Anantrao S/O Krishnaji Kulkarni vs Smt.Vaishali W/O Renukadas ... on 5 July, 2011
Bench: R. M. Borde
Admit. Appeal is taken up forthwith and heard finally by consent of learned Counsel for respective parties. {2}
2 This is an appeal by original defendant raising challenge to the judgment and decree passed by 2nd Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No. 285/2002 decided on 24.04.2007.
3 Respondent (hereinafter referred to as 'the plaintiff'), instituted Special Civil Suit No.285/2002 claiming decree of specific performance of contract and perpetual injunction. Defendant is the owner of plot bearing plot no.20, CTS No. 15844/1/20, situate at Medical College Hospital Class III Employees' Cooperative Housing Society, Shahnoorwadi, Aurangabad. He entered into contract with the plaintiff for sale of the plot for consideration of Rs.2,40,000/- on 02.02.1997. Plaintiff parted with the earnest amount of Rs.30,000/- at the time of execution of agreement and it was agreed between the parties that at the time of execution of sale deed, balance of consideration amount shall be paid. According to the plaintiff, from time to time, she requested the defendant to execute the sale deed by accepting balance of consideration amount, but the defendant avoided to do so. Ultimately a notice was issued to the defendant on 22.02.2002, so also a public notice was published in local newspaper on 18.07.2002 calling upon the defendant to perform his part of the contract. Defendant, however, did not act in accordance with the terms of the agreement, as such, plaintiff was constrained to file suit.
{3}
fa77711.odt
4 In response to service of suit summons, defendant, though caused his appearance, failed to file his written statement. Suit, as such, proceeded without there being any written statement on behalf of the defendant placed on record. 5 Plaintiff filed affidavit in lieu of examination-in-chief of the witness Nitin Deshmukh (P.W.2) on her behalf. Plaintiff also placed on record the agreement to sale as well as copy of notice and news paper publication.
6 The trial Court, on considering evidence in the form of affidavit in lieu of examination tendered by the plaintiff and her witness, so also on consideration of the documentary evidence placed on record, was pleased to grant decree in favour of the plaintiff.
7 Shri Mandalik, learned Senior Counsel appearing for appellant - original defendant, contends that the trial Court has erred in granting decree in favour of the plaintiff solely relying upon the evidence of plaintiff and her witness in the form of affidavit. According to Shri Mandlik, the procedure, as prescribed under Order XVIII Rule 5 of the Code of Civil Procedure has not been followed and as such evidence of the plaintiff, without her examination on oath before the Court affirming contents of {4}
fa77711.odt
affidavit, is not sufficient to pass decree. It is the contention of learned Senior Counsel appearing for the appellant that the trial Court has misread provisions of Rule 4 Order XVIII of the Code of Civil Procedure, which permits the Court to receive evidence in the form of affidavit in the nature of examination-in-chief of the witness. It is further contended that provisions of Rules 4, 5 and 13 of Order XVIII have to be read harmoniously and in appealable cases, recording of evidence shall be as provided under Rule 5 of Order XVIII of the Code of Civil Procedure. It is also the contention of the appellant that the documents placed on record, including agreement to sell, have not been proved in accordance with the provisions of law and the trial Court has erred in relying upon the documentary evidence and granting decree in favour of the plaintiff. The documents placed on record are required to be proved in accordance with the provisions of Evidence Act and unless there is a formal proof of the documents, same cannot be read in evidence.
8 Shri Dixit, learned Senior Counsel appearing for respondent - original plaintiff, has supported the decree passed by the trial Court. Shri Dixit contends that the defendant did not file his written statement and did not controvert the contentions raised by the plaintiff and as such, the trial Court was justified in accepting evidence in the form of affidavit in the nature of examination-in-chief produced by the plaintiff and passing decree {5}
fa77711.odt
in her favour.
9 The plaintiff has placed on record her affidavit in the nature of examination-in-chief so also affidavit of one witness in the form of examination-in-chief and closed her evidence. Plaintiff did tender documents along with her affidavit, however, she did not step into witness box to prove the writing, contents of the document and signature appearing thereon. Thus, there is no formal proof of the documents, still, the trial Court exhibited those documents and admitted the same in evidence. It is permissible in every case to receive affidavit in the form of examination-in-chief. Rule 4 of Order XVIII provides that in every case, examination-in- chief of the witness shall be on affidavit and copies thereof shall be supplied to the opposite party.
10 Rule 5 of Order XVIII provides that: 5 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 the language of the Court,- (i) in writing by, or in the presence and under the personal direction and
superintendence of, the Judge, or
{6}
fa77711.odt
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for the reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.
11 Reliance is placed on the judgment of this Court in the matter of F.D.C. Ltd., Vs. Federation of Medical Representatives Association India (FMRAI) and others, reported in AIR 2003 Bombay 371. The judgment in the case of F.D.C. Ltd. has received a stamp of approval of the Supreme Court in the matter of Ameer Trading Corporation Ltd Vs. Shapoorji Data Processing Ltd., reported in 2004 (5) ALL MR (S.C.) 425. In paragraphs 30 and 31 of the Judgment, the Apex Court has observed thus:
"30 On the other hand, in F.D.C. Ltd (Supra) it has been held:
"The harmonious reading of R.4 and 5 of
O. 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 prescribed under R.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 R.13 of O. XVIII. In other words, {7}
fa77711.odt
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 R. 13 of O. 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 R.5 of O.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 R.4 read with R.13 in case of non-appealable cases and the procedure prescribed under sub- rule (2) of R.4 read with R.5 in appealable cases.
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 R.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 R.13 of O. XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of R.5, where as in case of non-appealable {8}
fa77711.odt
cases the Court would be empowered to exercise its power under R.13."
31 We agree with the view of the Bombay High Court."
It is further observed in the same judgment in paragraphs 32 and 33, thus:
"32 The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of cross- examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court.
33 Applying the aforementioned principles of interpretation of statute, we have no doubt in our mind that Order 18 Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and Order 18, Rule 5 cannot be read as an exception to Order 18 Rule 4."
{9}
fa77711.odt
12 It is the contention of Shri Dixit, learned Senior Counsel appearing for the Respondent-original plaintiff, that as observed by the Apex Court in paragraph 32 of the judgment, presence of a party, during examination-in-chief is not imperative, and in the instant matter, no objection is taken to the statements made in the affidavit. The defendant did not appear in the matter nor did care to cross examine the witness. The witness i.e. P.W.1 was made available for cross-examination and it is apparent from the endorsement made by the trial Judge on 12.10.2008. On the given date, plaintiff was present, however, defendant remained absent. As such, the trial Judge endorsed, "no cross". It is, thus, contended that it is a case wherein the defendant did not feel it necessary to cross examine the witness and as such the trial Court was justified in accepting the evidence in the form of affidavit and dispensing with the examination of the witness. As is observed by the Apex Court in paragraph 33 of the judgment, that Order XVIII Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4. The Supreme Court has given stamp of approval to the view taken by the Bombay High Court in the matter of F.D.C. Ltd., wherein it is observed that 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 {10}
fa77711.odt
affidavit, however, in appealable cases, 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 evidence unless 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.
13 In the instant matter, however, it appears that although the plaintiff was present before the Court on 12.10.2008, she did not enter the witness box and affirm as regards correctness of contents of the affidavit.
14 Shri Dixit, learned Senior Counsel appearing for the respondent - original plaintiff, placing reliance on the judgment of learned Single Judge of this Court in the matter of Dilip Madanlal Jain Vs. Pritam Kaur, reported in 2008 B.C.I. 159, contends that as the affidavit has been allowed to go on record un-objected as examination-in-chief, the deficiency of formal confirmation of affidavit, is of a form than of content. It is observed by the learned Single Judge in paragraphs 23 to 25 of the judgment, thus: "23 In the situation like in present case where the witness, parties and the Advocates proceed on assumption that the affidavit has been allowed to go on record un-objected as examination-in-chief, the deficiency of formal confirmation of affidavit to be one of the {11}
fa77711.odt
witnesses own, becomes a deficiency of 'form' than of content.
24 As the affidavit has gone on record un- objected, it now becomes an objection as to the deficiency in complying with the need of showing to the witness the signature on the affidavit, and have it confirmed from him.
25 The need of reiteration in terms of the observation contained in the FDC Ltd., case cannot be applied with the same rigour and in retrospective operation as its substantial compliance will be deemed to have been done once the witness is before Court, is administered oath and is cross-examined on a foundation that the affidavit in examination-in- chief is filed furtherance to Rule 4 of Order 18 of Civil Procedure Code without raising any objection. The failure to elicit from him that it is his affidavit by way of further examinations- in-chief does not vitiate, destroy or nullify his testimony contained in the said affidavit."
15 It is not disputed in the instant matter that the case is one, being appealable, covered by rule 5 of Order XVIII of the Code of Civil Procedure. It is also to be noted that although the witness i.e. plaintiff was present on 12.10.2008 before the Court, she did not enter the witness box and affirm contents thereof and signature on the affidavit, nor the witness was shown the documents tendered along with the affidavit, so as to prove the documents and comply with requirements of its admissibility. The documents tendered along with affidavit of the witness ought not {12}
fa77711.odt
to have been straightway admitted in the evidence and also cannot be read and considered without there being formal proof of the documents. The observance of Rule 5 of Order XVIII in respect of tendering evidence of the witness in appealable cases as well as proof of the documents tendered along with the affidavit, as required by provisions of Evidence Act, is necessary and in the absence of observance of the procedure, as contemplated by law, it was an error on the part of the trial Judge to rely on the affidavit tendered by the witness for the purposes of granting decree in favour of the plaintiff.
16 Shri Dixit, learned Senior Counsel appearing for the Respondent - original plaintiff, has invited my attention to para 21 of the judgment in Dilip Jain's case (cited supra) and contended that the learned Single Judge has considered observations of the Apex Court in the matter of Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and others, reported in 2006 (1) S.C.C. 46, and observed that, once the witness is called for cross-examination, Rule 5 Order XVIII gets substantially complied with. It is noted in the said paragraph thus:
"Moreover, the Hon'ble Supreme Court in
case of Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and Ors. (cited supra), while putting a seal of approval on the view taken on FDC Ltd., case, has also considered that Rule 4 will have to be construed in joint reading with Rule {13}
fa77711.odt
5 in appealable cases meaning thereby that the witness will have to be called for cross- examination and it be recorded in such manner prescribed in Rule 5."
17 On close scrutiny of the judgment of the Apex Court in the matter of Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and others, reported in 2006 (1) S.C.C. 46, I do not find that Rule 4 or 5 of Order XVIII had fallen for consideration of the Apex Court, nor the judgment of this Court in F.D.C. Ltd. (supra) was cited before the Apex Court, nor same has been considered. The reference to the judgment of Shaikh Salim (supra) by the learned Single Judge appears to be an inadvertent mistake. Learned Senior Counsel appearing for the appellant is justified in contending, placing reliance on the judgment of the Apex Court in the matter of Ameer Trading Corporation Ltd. (supra), that in appealable cases, the examination-in-chief of the witness is permissible to be produced in the form of affidavit and such affidavit cannot be ordered to form part of evidence unless deponent thereof enters the witness box and affirms that contents of the affidavit are as per his say and affidavit is under his signature. As has been observed by the Apex Court in the judgment cited supra, Rules 4 and 5 are required to be harmoniously construed and both the provisions are required to be given effect to and that Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.
{14}
fa77711.odt
18 In the instant matter, apart from the failure of plaintiff and his witness affirming on oath before the Court contents of the affidavit and signature thereon, have also failed to prove the documents placed on record, in accordance with law. In the absence of proof of documents and more specifically the agreement to sell entered into between the plaintiff and defendant, decree of specific performance of contract could not have been awarded in favour of the plaintiff.
19 In the facts and circumstances of this case, it would be just and proper to extend an opportunity to the plaintiff to cure the procedural deficiencies appearing in the evidence and remand the matter to the trial Court, would meet the ends of justice. Considering facts and circumstances of this case, while allowing the appeal and quashing and setting aside the decree passed by the trial Court, I deem it appropriate to remit the matter back to the trial Court for extending an opportunity to the plaintiff to cure the procedural deficiencies. The plaintiff - Respondent herein shall be permitted to prove contents of the affidavit and signature thereon and also lead evidence in respect of proof of the documents. The defendant - appellant herein shall have liberty to cross examine the plaintiff and her witness/es. Considering long pendency of the matter, the trial Court is directed to decide the matter as expeditiously as possible, preferably by the end of {15}
20 In the result, appeal is allowed. The judgment and decree dated 24.04.2007, passed by 2nd Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.285/2002, is quashed and set aside. The matter is remitted back to the trial Court for fresh consideration and for rendering decision in accordance with directions issued in this judgment. The trial Court shall deal with the matter in accordance with the directions issued and observations made in the judgment. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Applications, if any, do not survive and stand disposed of accordingly.
R.M.BORDE
No comments:
Post a Comment