Witness who has filed an affidavit should be made available for cross-examination.

If the Court so permits any fact to be proved by affidavit, there is a duty enjoined upon the Court to see to it that it would permit the cross-examination of such deponent where any party bonafide desires production of witness for such cross-examination. In fact, as can be seen, Rule 1 of Order XIX of the C.P.C. leaves no discretion in the Court insofar as the cross-examination is concerned and makes it mandatory that the witness, who can be produced and who has filed an affidavit, is made available for cross-examination. The said provision can therefore be said to be couched in mandatory form leaving no discretion in the Court. It is well settled by the judgment of the Apex Court reported in AIR 1988 SC 1381 in the matter of Sudha Devi Vs. M.P. Narayanan, the judgment of this Court reported in 2007(1) BCR 506 in the matter of Holya Lasha Mahale and another Vs Raghunathy Holya Mahale and the other judgments, which have been relied upon on behalf of the respondents that the Court may for sufficient reason, order or permit any fact or facts to be proved by affidavit. The latest in the line of the judgments on the said aspect is the judgment of the Apex Court in the case of AyubKhan Noor Khan Pathan (supra). Paragraphs no. 31 to 36 of the said judgment are material and are reproduced hereunder:

31. It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act€™). Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan andOrs., AIR 1988 SC 1381; and Range Forest Officer v. S.T.Hadimani, AIR 2002 SC 1147).

M/s Resources International and Others Vs. Mrs. Ana Bertha do Rego e Fernandes and Another

Court : Mumbai - Goa

Judge : R.M. SAVANT

Decided On : Oct-22-2013

Citation;2014(2)MHLJ164

Rule in all the petitions. With the consent of the learned Counsel for the parties, made returnable forthwith and heard.

2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the identical orders dated 16/11/2012 passed by the Principal District Judge, South Goa, Margao, by which order, the applications filed by the respondents for being permitted to cross-examine the person, who had sworn the affidavit in the applications filed under Section 149/151 of the C.P.C. i.e. one Dipak Rajani, came to be allowed and the said person i.e. Shri Dipak Rajani was directed to submit himself to cross-examination.

2. The facts necessary to be cited for the adjudication of the above petitions can be stated thus :

The petitioners herein and the respondents were involved in Arbitration Proceedings, which culminated in the declaration of the Award dated 29/03/2008. The petitioners invoked Section 34 of the Arbitration and Conciliation Act, 1996 ('the Arbitration Act, 1996' for short) by filing Applications to challenge the said Award passed by the majority of the Arbitrators. The said Arbitration Applications, inter alia, contain an averment that the applications were filed within limitation and have been affixed with fixed Court fee of Rs.20/-. The said Arbitration Applications were presented to the registry of the District Court, South Goa and were admitted to the registry and were numbered as Arbitration Applications No.18, 19 and 20 of 2008.

3. The notice of the Arbitration Applications came to be issued to the respondents herein. On receipt of the said notice, the respondents filed their replies to the said applications on 25/09/2008 and along with the replies, the respondents also filed the applications under Order VII, Rule 11 of the C.P.C. or the provisions analogous thereto for rejection of the applications, inter alia, on various grounds mentioned in the said applications, including the ground that the Court fee paid was not adequate. One of the other grounds was that the said Arbitration Applications were not filed within limitation. To the said applications filed under Order VII, Rule 11 of the C.P.C., the petitioners filed their replies. Insofar as the ground of nonpayment of proper Court fee is concerned, the said ground was dealt with in paragraph 10 of the replies filed by the petitioners. In the said paragraph 10, it was averred that the filing clerk of the District Court, on the Arbitration Applications being presented, had informed the Advocate for the petitioners that the requisite Court fee for an application/ petition under Section 34 of the Arbitration Act, 1996 is Rs.20/-. It is further averred that subsequently, it was learnt that the requisite Court fee was Rs.25/- and not Rs.20/- and, therefore, an attempt came to be made to pay the deficit Court fee. However, the filing clerk refused to accept the deficit Court fee without the order of the Court.

4. To the said replies, the respondents herein filed rejoinders dated 25/11/2008. In the said rejoinders, the respondents reiterated their case in the applications filed by them under Order VII, Rule 11 of the C.P.C. It appears that, thereafter, the said applications filed under Order VII, Rule 11 of the C.P.C. were partly argued on 04/12/2009 and, thereafter, were kept for further arguments on 07/01/2010. It appears that on 05/01/2010, the petitioners herein served upon the respondents an application filed under Section 149/151 of the C.P.C. or the principles analogous thereto. Similar applications were filed in the other two Arbitration Applications. The said applications filed under Section149/151 of the C.P.C. once again contain the statements, which were mentioned in the replies to the applications filed under Order VII, Rule 11 of the C.P.C. The said applications came to be filed on 07/01/2010. Along with the applications, the affidavits of the Advocate on record Mr. Vledson L. Braganza, who had filed the Arbitration Applications under Section 34 of the Arbitration Act, 1996, were annexed. In the context of the challenge in the present petitions, it would be apposite to reproduce on record paragraphs no.2, 4, 5, 6, 7, 8 and 9 of the said applications filed under Section 149/151 of the C.P.C.

“2. The Applicants state that when the Petition was filed on 27-6-2008, the filing clerk in the Court office, confirmed that the requisite court fees payable for an application under section 34 of the Arbitration and Conciliation Act, 1996 was Rs.20/-, accordingly, a court fee of Rs.20/- was paid by affixing adhesive Court Fee Stamps of Rs.20/-, on the application.

4. After the Application under Section 34 was filed it was served upon the Respondents on notices being issued to the Respondents. The Respondents filed their Reply to the said application on 15/09/2009 and along with the reply to the Application filed by the Respondents, the Respondents, also filed an application under Order 7 Rule 11 of the Code of Civil Procedure 1908, or provisions analogous thereto, for rejection of the Application, inter alia on the ground that the Court fee paid was inadequate.

5. Thereupon, an officer from the Applicant's legal department, visited the office of the Court of the Principal District Judge at Margao, and was informed that balance payment of any deficient court fee would require an appropriate court order and that a court order was required to be obtained before the deficient Court fee could be accepted.

6. An affidavit of the advocate on record who filed the application under Section 34 of the Arbitration and Conciliation Act 1996, on 27.06.2008 is annexed herewith and marked Annexure A.

7. The Applicants by the present application therefore without prejudice crave leave of this Hon'ble Court to permit them to pay the deficient Court fee, so that in the event the Court fees paid are deficient then the requisite Court fees for the aforesaid Petition are paid.

8. The Applicants without prejudice state and submit that in any event of the matter the nonpayment of the Court fee is not deliberate but has in fact occurred by inadvertence and under a bonafide impression that the requisite Court Fee payable on an application filed under Section 34 of the Arbitration and Conciliation Act 1996 was in fact Rs.20/-.

9. Under the circumstances it is submitted that it is in the interest of justice, and equity that this Hon'ble exercise its jurisdiction and grant the present application, in as much, if the present application is granted no prejudice of whatsoever nature will ensue to the Respondents but on the contrary if the present application is not allowed grave and irreparable injury/ harm and prejudice which cannot be compensated in terms of money will be caused to the Applicants.”

5. To the said applications, the respondents filed their replies dated 09/02/2010 opposing the applications, inter alia on the grounds mentioned therein. In the said replies, the respondents also submitted that an opportunity be afforded to them to cross-examine the witnesses/ deponents which the petitioners may choose to examine in the course of the enquiry which the Court would conduct in respect of the said applications filed under Section 149/151 of the C.P.C. The respondents sought an opportunity to cross-examine the witness of the petitioner as in the said applications and the affidavits filed by the Advocate, the blame for non-payment of the proper Court fee was sought to be apportioned upon the filing clerk in the registry of the District Court and it was the case of the respondents that in the light of the averments made in the said applications, seriously disputed questions of fact were involved. It is the case of the respondents that since, by 19/06/2010, it became clear that the petitioners were not desirous of examining the deponents of the affidavits both in respect of the application as also the affidavit filed by the Advocate, the respondents sought permission to cross-examine the deponents of the said affidavits. The petitioners filed their replies to the applications filed by the respondents seeking permission to cross-examine the witnesses/ deponents of the petitioners. To the said replies filed by the petitioners, the respondents filed their rejoinders. It appears that during the course of hearing of the said applications filed by the respondents to cross-examine the witnesses/ deponents of the petitioners, the affidavits filed by the Advocate on record came to be withdrawn which affidavits, as indicated above, were filed along with the applications under Section 149/151 of the C.P.C. The parties proceeded in respect of the hearing of the said applications for cross-examination of the witnesses/ deponents of the petitioners. The learned District Judge, by the impugned order, has allowed the applications filed by the respondents seeking permission to cross-examine the person, who has sworn the affidavits in respect of the said applications under Section 149/151 of the C.P.C. The said person was Mr. Dipak Rajani, the partner of the petitioner no.1. The gist of the reasoning of the learned District Judge was that in view of there being serious disputed questions of fact which arise out of the reasons cited by the petitioners for non-payment of the proper Court fees in the applications filed under Section 149/151 of the C.P.C. and having regard to the provisions of Order XVIII, Rule 4 and Order XIX, Rules 1 and 2 of the C.P.C. as also taking into consideration the judgments of the Apex Court which have been cited on behalf of the respondents whereby the Apex Court has held that the Court can direct the parties to prove a fact by affidavit, for the reasons mentioned in the order, the applications filed by the respondents for cross-examination of the witnesses/ deponents of the petitioner, were required to be allowed. As indicated above, it is the said identical orders dated 16/11/2012 passed in all the applications filed under Section 141/151 of the C.P.C. which are the subject matter of the above petitions.

6. Heard the learned Counsel for the parties.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL SHRI S. D. LOLTLIKAR FOR THE PETITIONERS.

(i) That the non-payment of proper Court fee is due to inadvertence on the part of the petitioners and the same was not willful or deliberate.

(ii) That in terms of the Civil Manual, a duty is enjoined upon the Court office to ascertain the proper Court fee payable which can be seen from Rule 8 of the Civil Manual, 1986. The said Rule postulates the steps to be taken by the office after the presentation of the plaint. One of the things to be ascertained by the office is whether the plaint is properly valued and stamped. Relying upon the said provisions in the Manual, the learned Counsel would contend that in terms of the said Rule, it was an obligation of the office to ascertain whether the application was properly valued and stamped and that being not done, the petitioners cannot be blamed for non-payment of the proper Court fee.

(iii) That the payment of Court fees is primarily a matter between the Government and the litigant. In support of the said contention, the learned Senior Counsel relied upon the judgment of the Apex Court reported in AIR 1953 SC 431 in the case of Mahasay Ganesh Prasad Ray and Anr. Vs. Narendra Nath Sen and Ors.

(iv) That since the rejection of the plaint has been sought by the respondents by having recourse to Order VII, Rule 11 of the C.P.C., it is in terms of Order VII, Rule 11(3) of the C.P.C. that the petitioners are entitled to make good the deficit Court fee and the Court is required to give an opportunity to the petitioners to make good the deficit Court fee and the applications cannot be rejected for the said ground. It is the submission of the learned Senior Counsel that such an application being made by the petitioners in the replies filed to the applications made by the respondents under Order VII, Rule 11 of the C.P.C., the Court was required to permit the petitioners to pay the deficit Court fee and then adjudicate upon the applications filed under Order VII, Rule 11 of the C.P.C.

(v) That the applications filed under Section 149/151 of the C.P.C. have been filed out of abundant caution and having regard to the scheme as contained in Rule 11 of Order VII of the C.P.C., the petitioners were not required to file such an application as in terms of sub-rule (3) of Rule 11 of Order VII of the C.P.C., the Court ought to have given an opportunity to the petitioners to make good the deficit Court fee.

(vi) That the judgments relied upon on behalf of the respondents which have been referred to in the impugned order passed by the learned District Judge, are the cases where serious disputes were involved in respect of the statements made in the balance sheet etc., wherein the Apex Court had held that it is within the discretion of the Civil Court whether to permit a fact to be proved by affidavit or otherwise. Such is not the instant case here as in the instant case, the applications as filed were presented in time and have also been registered and numbered by the office and therefore cross-examination is not warranted.

(vii) That the cross-examination of the witnesses/ deponents of the petitioners would not serve any useful purpose as ultimately, the issue is making the deficit Court fee good which is the issue between the Court and the litigant and the other side is not concerned with it.

(viii) That the learned District Judge, whilst adjudicating upon the applications filed by the respondents to cross-examine the witnesses/ deponents of the petitioners, has virtually decided the fate of the applications filed by the petitioners as in paragraph 36, the learned District Judge has virtually opined that in case the respondents establish that no requisite Court fees were paid, such an application was liable for rejection on principle.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL SHRI A. N. S. NADKARNI APPEARING FOR THE RESPONDENTS NO.1 AND 2.

(i) That in view of the serious dispute as regards the reasons mentioned by the petitioners in their applications under Section 149/151 of the C.P.C., for which reasons, according to the petitioners, the proper Court fee in respect of all the applications filed by them under the Arbitration Act, 1996 was not paid, the order passed by the learned District Judge directing cross-examination of the petitioners' witnesses/ deponents cannot be faulted with.

(ii) That having regard to Section 3 of the Evidence Act as also having regard to Order XVIII, Rule 4 and Order XIX, Rule 1 of the C.P.C., 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, having regard to the proviso to said Rule 1 where it appears to the Court either party bonafide desires the production of a witness for cross-examination, and such witness can be produced, an order would not be made authorising the evidence of such witness to be given by the affidavit. It is, therefore, the submission of the learned Senior Counsel that in terms of the proviso the mandate cast upon the Court is to permit the cross-examination of the witness, who has filed the affidavit and no orders can be made authorising the evidence of such witness to be given by affidavit.

(iii) That in terms of Rules 1 and 2 of Order XIX of the C.P.C., there is no discretion left in the Court insofar as the cross-examination of the witness is concerned as in terms of the said provision, unless such a witness can be produced for cross-examination, the Court cannot authorise the evidence of such witness to be given by the affidavit. The learned Senior Counsel places reliance on a catena of judgments of the Apex Court which have been referred to in the impugned order as also the latest judgment on the said aspect reported in (2013)4 SCC 465 in the matter of Ayub Khan Noor Khan Pathan Vs. State of Maharashtra.

(iv) That the pleadings which have been filed on behalf of the petitioners would disclose that the witness of the petitioners has no regard for the truth, in support of the said contention, the learned Senior Counsel relies upon the verification clause in the affidavit-in-replies filed to the applications under Order VII, Rule 11 of the C.P.C. filed by the respondents. In the affidavit-in-replies filed to the applications for permission to cross-examine the witnesses/ deponents, there is no verification clause and only the Advocate has signed. It is in the said circumstances that the cross-examination of the witnesses/ deponents of the petitioners is necessary.

(v) That the fact that the Advocate on record of the petitioners has withdrawn his affidavit, is also required to be taken into consideration whilst considering the applications for cross-examination of the witnesses/ deponents of the petitioners. The withdrawal of the said affidavit, in a way, substantiates the case of the respondents.

(vi) That the contention raised on behalf of the petitioners that in the replies filed by the respondents on 10/03/2010 opposing the applications under Section 149/151 of the C.P.C., they had not made any prayer for cross-examination of the witnesses/ deponents and, therefore, the applications filed now are afterthought and have been filed just to delay the consideration of the applications filed by the petitioners challenging the Awards passed by the Arbitral Tribunal.

(vii) That the applications under Section 149/151 of the C.P.C. would have to be adjudicated on the touchstone of the well settled principle that under Section 149 of the C.P.C., a discretion is vested in the Court which discretion is conditional upon the satisfaction of the Court that the plaintiff offers a legally acceptable explanation for not paying the Court fee. In support of the said contention, the learned Senior Counsel relied upon the following judgments of the Apex Court :

(i) Reported in (2012)7 SCC 738 in the matter of A. Nawab John and others Vs. V.N. Subramaniyam.

(ii) Reported in (1995)5 SCC 284 in the matter of Buta Singh (dead) By Lrs. Vs. Union of India.

(iii) Reported in AIR 1994 Ori. 90 in the matter of Land Acquisition Officer-cum-Collector, Kalahandi Vs. Sambaru Bariha.

(viii) That allowing of the applications filed by the petitioners under Section 149/151 of the C.P.C. without taking into consideration the reasons mentioned in the said applications, would cause prejudice to the respondents as the instant case concerns the applications filed under Section 34 under the Arbitration Act, 1996 for which a special period of limitation is prescribed under the said Act. It is the submission of the learned Senior Counsel that insofar as the said proceedings are concerned, they cannot be equated with a suit and, therefore, the reasons mentioned in the applications assume importance and it is in the said context that the applications filed by the petitioners under Section 149/151 of the C.P.C. would have to be adjudicated.

7. Having heard the learned Senior Counsel for the parties, I have bestowed my anxious consideration to the rival contentions.

8. The issue, which arises for consideration, as can be seen, is whether the learned District Judge was right in allowing the applications filed by the respondents for cross-examination of the person, who has verified the contents of the applications under Section 149/151 of the C.P.C. In the context of the issue, which arises for consideration, it is required to be noted that in the replies filed to the applications filed by the respondents under Order VII, Rule 11 of the C.P.C., the petitioners had averred in paragraph 10 to the following effect :

“10. With reference to paragraph 10, it is denied that there has been any deliberate attempt not to pay the requisite court fee along with the Petition filed under Section 34 of the said Act. When the Petition was filed on 27/06/2008, the filing clerk in the Court office informed the advocate on behalf of the Petitioners that the filing fee for a petition to set aside an award under Section 34 of the said Act was Rs.20/- which was accordingly paid, and the Petition was filed. When it was subsequently learnt that the filing fee was Rs.25/- an attempt was made to pay the balance fee of Rs.5/-. The filing clerk however stated that he was unable to accept the balance amount of Rs.5/- without an appropriate court order and therefore a court order was required to be obtained before the balance amount of Rs.5/- could be accepted by him. The Petitioners crave leave of this Hon'ble Court to permit them to pay the balance Rs.5/- so that the adequate filing fees for the aforesaid Petition are paid.”

9. No doubt, the said applications filed by the respondents questioning the maintainability of the applications /petitions filed by the petitioners under Section 34 of the Arbitration Act, 1996 were proceeded to hearing in respect of the grounds, on which the rejection of the said applications filed by the petitioners was sought, amongst which was the ground of non-payment of the proper Court fee. It is undisputed position that it is prior to one of the dates fixed for hearing of the said application under Order VII, Rule 11 of the C.P.C. that the petitioners filed the application under Section 149/151 of the C.P.C. for being permitted to pay the deficit Court fee. It is in the said application that the averments have been made which find place in the paragraphs of the said application which paragraphs have already been adverted to hereinabove. The said applications under Section 149/151 of the C.P.C. was accompanied by the affidavit of the Advocate on record of the petitioners, who had by the said affidavit sought to support the averments made in the said applications. It is undisputed position that the affidavit of the Advocate was withdrawn. Since the petitioners did not desire to examine the deponents of the affidavits, who have verified the said applications under Section 149/151 of the C.P.C., the respondents filed the applications for cross-examination of the witnesses/ deponents. In the said context, it would be relevant to refer to Section 3 of the Evidence Act as also Order XVIII, Rule 4 and Order XIX, Rules 1 and 2 of the C.P.C. Insofar as Section 3 of the Evidence Act is concerned, it provides that the affidavits are not evidence within the meaning of the said provision. Order XVIII governs the examination of the witnesses. Order XVIII, Rule 4 provides that in every case, the examination-in-chief of the witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party, who calls him for the evidence. Sub-rule (2) provides for the evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (i.e. examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or Commissioner appointed by it. Hence, Order XVIII, Rule 4(2) of the C.P.C. provides that the cross-examination shall be taken either by the Court or by the Commissioner appointed by it.

Now coming to Order XIX, Rules 1 and 2 of the C.P.C., the said Order provides 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, provided that where it appears to the Court that either party bonafide desires the production of the witness for cross-examination, and that said witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Sub-rule (2) of Order XIX of the C.P.C. provides that upon any application being made, the evidence can be given by the affidavit, but at the same time, it also enjoins a duty upon the Court that it may, at the instance of either party, order attendance for cross-examination of the deponent. Hence, in terms of Order XIX, Rules 1 and 2 of the C.P.C., any Court for sufficient reason, order or permit any fact or facts to be proved by affidavit. If the Court so permits any fact to be proved by affidavit, there is a duty enjoined upon the Court to see to it that it would permit the cross-examination of such deponent where any party bonafide desires production of witness for such cross-examination. In fact, as can be seen, Rule 1 of Order XIX of the C.P.C. leaves no discretion in the Court insofar as the cross-examination is concerned and makes it mandatory that the witness, who can be produced and who has filed an affidavit, is made available for cross-examination. The said provision can therefore be said to be couched in mandatory form leaving no discretion in the Court. It is well settled by the judgment of the Apex Court reported in AIR 1988 SC 1381 in the matter of Sudha Devi Vs. M.P. Narayanan, the judgment of this Court reported in 2007(1) BCR 506 in the matter of Holya Lasha Mahale and another Vs Raghunathy Holya Mahale and the other judgments, which have been relied upon on behalf of the respondents that the Court may for sufficient reason, order or permit any fact or facts to be proved by affidavit. The latest in the line of the judgments on the said aspect is the judgment of the Apex Court in the case of AyubKhan Noor Khan Pathan (supra). Paragraphs no. 31 to 36 of the said judgment are material and are reproduced hereunder:

31. It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’). Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regardsa particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan andOrs., AIR 1988 SC 1381; and Range Forest Officer v. S.T.Hadimani, AIR 2002 SC 1147).

32.While examining a case under the provisions of the Industrial Disputes Act, 1947, this Court, in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 1972 SC 330, considered the application of Order XIX, Rules 1 and 2 CPC, and observed as under:- (SCC p.629, para 14)

"14. ...But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the questions that naturally arises are: is it a genuine document, what are its contents and are the statements contained therein true?...... If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under O. 19 of the Code and the Evidence Act, both of which incorporate the general principles."

33. In Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd.; AIR 1981 SC 1298, this Court considered a case under the Indian Companies Act, and observed (at SCC p. 373, para 63) that, “it is generally unsatisfactory to record a finding involving grave consequences with respect to a person, on the basis of affidavits and documents alone, without asking that person to submit to cross-examination”. However, the conduct of the parties may be an important factor, with regard to determining whether they showed their willingness to get the said issue determined on the basis of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn.

34.In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700, this Court considered the scope of application of the provisions of Order 19, Rules. 1 and 2 CPC in a rent control matter, observing as under:- (SCC p. 628, para 9)

"9. ...The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure."

35.In Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, this Court while dealing with a case under the provisions of Companies Act, 1956, while considering complex issues regarding the Markets, Exchanges and Securities, and the procedure to be followed by special Tribunals, held as under :(SCC pp.121-122, para 48)

“48. While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is self-explanatory……. In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the suit on the basis of its inference based on such assumed explanations.”

36.Therefore, affidavits in the light of the aforesaid discussion are not considered to be evidence, within the meaning of Section 3 of the Evidence Act. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view, stands fully affirmed particularly, in view of the amended provisions of Order XVIII, Rules 4 and 5 CPC. In certain other circumstances, in order to avoid technicalities of procedure, the legislature, or a court/tribunal, can even lay down a procedure to meet the requirement of compliance with the principles of natural justice, and thus, the case will be examined in the light of those statutory rules etc. as framed by the aforementioned authorities.

10. It is in the context of the provisions of the C.P.C. governing the proving of the fact or facts by affidavit and the law enunciated by this Court as well as by the Apex Court on the said aspect that the facts of the present case would have to be seen. It is required to be noted that in the instant case, the respondents have joined issue with the petitioners in respect of the reasons cited by them for non-payment of the proper Court fee. The petitioners, as can be seen, have cited reasons as to why proper court fee could not be paid by them. The instant case, is not a case where the petitioners have simpliciter filed an application that on account of inadvertence, the proper Court fee was not paid by them. In the reply filed by them to the application filed by the respondents under Order VII, Rule 11 of the C.P.C., in paragraph 10 thereof, the petitioners have mentioned the reasons as to why the proper Court fee was not paid by them. The petitioners have averred that the Court clerk of the District Court had informed them that the fee payable in respect of the application filed under Section 34 of the Arbitration Act, 1996 is Rs.20/- and that thereafter, having acquired the knowledge that the fee is Rs.25/-, they sought to make amends. However, they were not allowed to do so by the Court clerk, who informed them that they would have to obtain orders from the Court. The petitioners have, thereafter, filed the applications under Section 149/151 of the C.P.C. in which applications, the averments have again been made as to the reason why proper Court fee was not paid by the petitioners. It is well settled that insofar as the applications under Section 149/151 of the C.P.C. is concerned, the said provisions enable the plaintiff to seek indulgence of the Court to permit payment of deficit Court fee subsequent to the presentation of the plaint. It would be, therefore, gainful to refer to the judgments cited on behalf of the respondents governing the exercise of power by a Court under Section 149 of the C.P.C.

Insofar as the judgment in A. Nawab John and others (supra) is concerned, paragraph 43 and 44 are material and are reproduced hereunder :

“43.This Court on more than one occasion held that the jurisdiction under Section 149 CPC is discretionary in nature. [See P.K. Palanisamy v. N. Arumugham; (2009)9 SCC 173 and GanapathyHegde v. Krishnakudva;(2005)13 SCC 539]

44. It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the court, though has discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation.) It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the court is conditional upon the satisfaction of the court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.”

Insofar as the judgment in ButaSingh (dead) by LRs (supra) is concerned, paragraph 9 is material and is reproduced hereunder :

“9.Having given anxious consideration to the respective contentions, question arises whether the claimants would be allowed to pay the deficit court fee. It is true that Section 149 CPC gives powers to the court to give time to the appellant to make up deficiency of court fee when the whole or any part of the fee prescribed under the Court Fees Act to pay court fee on the Memorandum of Appeal (MOA) but had not been paid while presenting the same; but the power of the court is one of discretion and not as of right. Generally, before the appeal is admitted under Order 41, Rule 9, the court would exercise the discretion on showing sufficient cause for not making the required fee on the MOA. The discretion conferred on the court by Section 149 is a judicial discretion. The court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit court fee or he was under bona fide mistake in payment thereof. Mere poverty or ignorance or inability to pay the court fee at the time of presenting the appeal is not always a good ground for indulgence under Section 149. Bona fide mistake on the part of the appellant or applicant in making the deficit court fee may be a ground to exercise discretion in favour of the appellant. It is the duty of the Registry before admitting the appeal to point out to the appellant or his counsel that deficit court fee is payable on the MOA and some reasonable time may be given for payment of the court fee. The MOA would be returned to do the needful. If the deficit court fee is not made up and presented within the time enlarged under Section 148 CPC, there would be no appeal in the eye of law unless the delay is condoned. If the party deliberately to suit his convenience paid insufficient court fee, the mistake is not a bona fide but one of choice made by the party in making the deficit court fee. In that situation, even after pointing out the need to make the court fee and given time, if the court fee is not paid and MOA is represented within the enlarged time, it would be open to the court either to reject the MOA or refuse to condone the delay for not showing sufficient cause thereon. Therefore, the court is required to exercise its judicial discretion keeping the facts and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good the deficit court fee. In the latter event, it is not the exercise of the judicial discretion but showing undue indulgence.”

Insofar as the judgment in Land Acquisition Officer-cum-Collector, Kalahandi (supra) is concerned, paragraph 5 is material and is reproduced hereunder:

“5. Despite the above, we would observe that when Section 149 has not put any fetter on the exercise of discretion, it may not be permissible to do so by laying any guideline as such. All that can justifiably be said is that the Court while exercising the discretion has to bear in mind that the power conferred is meant to be exercised in exceptional case and on being satisfied that non-payment of court-fee in time is for reason beyond the control of the appellant and the same is not due to his negligence. The ground shown has therefore to be adequate, cogent and strong, because, otherwise the exception would take the form of rule which would militate against the legislative intention.”

Hence, the above said judgments (supra) lay down the proposition that the power conferred on the Court under Section 149 of the C.P.C. has to be exercised in accordance with the settled principles of Law and is not to be exercised in a manner conferring unfair advantage on one of the parties to the litigation. It is well settled that the Court is required to exercise its judicial discretion keeping the facts and circumstances of each case in mind and not automatically and it is not for the mere asking, indulgence can be shown to the parties to make good the Court fee. The cross-examination of the witnesses/ deponents of the petitioners would, therefore aid the Court in arriving at a conclusion whether the reasons mentioned by the petitioners in their applications under Section 149/151 of the C.P.C. commend acceptance. The submission of the learned Senior Counsel appearing for the petitioners that the petitioners were not required to file the said applications under Section 149/151 of the C.P.C., cannot be accepted having once filed the said applications and having sought the intervention of the Court in that regard. Implicit in the order of the Court permitting the respondents to cross-examine the witness/ deponent of the affidavit is the fact that the petitioners are allowed to lead evidence by affidavit, but as mandated by Order XIX, Rules 1 and 2 of the C.P.C. to make the witness/deponent available for cross-examination. It is also required to be borne in mind that the result of the adjudication of the petitioners' applications for being permitted to pay the deficit Court fee would have serious consequences and implications for the respondents also, as the same would relate back to the date of filing of the said applications under Section 34 of the Arbitration Act, 1996. It is also required to be borne in mind that the deficit court fee is in respect of the applications filed under Section 34 of the Arbitration Act, 1996 for which the limitation is prescribed by the Arbitration Act, 1996 itself. Hence, having regard to the principles governing the exercise of jurisdiction under Section 149 of the C.P.C., and considering the fact that the issue of deficit court fees has arisen in respect of the applications filed under Section 34 of the Arbitration Act, 1996, it cannot be said that the said issue is only between the petitioners and the Government. Therefore, the Court, whilst adjudicating upon the applications filed by the petitioners under Section 149/151 of the C.P.C., is required to consider as to whether on the touchstone of the reasons mentioned by the petitioners, discretion is required to be exercised in favour of the petitioners. In my view, therefore, the impugned order permitting the cross-examination of the witnesses/ deponents of the petitioners cannot be found fault with. The same can only aid the Court in arriving at a decision as to whether to exercise discretion in favour of the petitioners or not. Since the applications under Section 149/151 of the C.P.C. are pending adjudication, the contentions urged on behalf of the respondents on merits of the said application need not be gone into.

11. A serious grievance has been made by the learned Senior Counsel appearing on behalf of the petitioners that the learned District Judge has already made up her mind, as she has already observed in paragraph 36 of the impugned order that in case the respondents establish that no requisite Court fees were paid, such an application was liable for rejection on principle. The said observation can only be said to be a prima facie view of the learned Judge, whilst arriving at a conclusion as to whether the witnesses/ deponents of the petitioners are to be permitted to be cross-examined by the respondents and cannot be said to be the view of the learned District Judge as regards the merits of the applications filed by the petitioners under Section 149/151 of the C.P.C.

12. The learned Senior Counsel also made a grievance of the use of the words “neither meritorious nor justified” by the learned District Judge in paragraph 37 whilst rejecting the contention urged on behalf of the petitioners. In my view, though the learned District Judge may have been right in rejecting the contention of the learned Senior Counsel appearing on behalf of the petitioners Shri S. D. Lotlikar, has thereafter, unnecessarily made the remark that the said contention of the learned Senior Counsel is “neither meritorious nor justified”. The learned District Judge could have rejected the said contention without such remark more-so when the applications are still pending adjudication.

13. Be that as it may, having regard to the nature of the orders passed i.e. permitting the respondents to cross-examine the witnesses/ deponents of the affidavit filed on behalf of the petitioners in the applications filed by them under Section 149/151 of the C.P.C., no case for interdiction in the writ jurisdiction of this Court under Article 227 of the Constitution of India, is made out. The Writ Petitions are, accordingly, dismissed. Rule discharged with no order as to costs.

14. At this stage, the learned Senior Counsel for the petitioners seeks for continuation of the ad interim relief, which is operating in the above petitions so as to enable the petitioners to facilitate the further course of action being taken. The learned Counsel Shri Pangam appearing for the respondents opposes the same. In the facts and circumstances of the case, the ad interim order is continued for a period of four weeks from date.

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