Abnash Kaur And Another vs Unknown on 10 February, 2012

[Cites 5, Cited by 0]

Punjab-Haryana High Court

Abnash Kaur And Another vs Unknown on 10 February, 2012

1. Defendants No. 3 and 4 are before this court challenging the order dated 23.1.2012, passed by the learned court below, whereby the application filed by the plaintiffs-respondents No. 1 and 2 for appointment of a Commission for recording the statement of Brig. H. S. Grewal as PW, was accepted.

2. Briefly, the facts of the case are that respondents No. 1 and 2 filed a suit for declaration with the following prayer:

"Suit for declaration that the two transfer deeds dated 30.6.2010 as executed by defendants No. 1 and 2 in favour of defendants No. 3 and 4 respectively, whereby the defendants No. 1 and 2 have transferred their 1/4th share each in House No. 76, Sector 19-A, Chandigarh in favour of defendants No.

3 and 4 respectively, are null and void being violative of clause XIII of registered Sale Deed dated 9.4.1979 and have no effect on the rights of the plaintiffs, who are co-owners to the effect of 1/4th share each in house No. 76, Sector 19-A, Chandigarh with a further stipulation to receive 1/4th share Civil Revision No. 870 of 2012 [2] each on the death of their parents i.e. defendants No. 1 and 2 and along with a Decree for joint possession along with Defendants No. 1 and 2 in respect of House No. 76, Sector 19- A, Chandigarh (RP No. 2932)."

3. It is in the aforesaid suit that the plaintiffs filed application for appointment of Local Commissioner for examination of Brig. H. S. Grewal as PW. The application having been allowed by the court below, the order is challenged before this court.

4. Learned counsel for the petitioners submitted that in terms of the provisions of Order XVIII Rule 4 CPC, examination-in-chief of a witness has always to be on affidavit, which has to be filed in court. It is only for the purpose of cross-examination that a Commission can be appointed. In the present case, the witness has not filed his affidavit in court in his examination-in-chief, hence no Commission could be appointed for recording his statement. The order passed by the learned court below being totally in violation of the provisions of law deserves to be set aside. In support of the submissions, reliance was placed upon the judgments of Hon'ble the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(6) SCC 344; a Full Bench of Andhra Pradesh High Court in Rita Pandit v. Atul Pandit, 2005 (2) RCR (Civil) 504 and a Single Bench judgment of Karnataka High Court in Drakshayini v. Gangavva and others, 2005(2) RCR (Civil ) 540.

5. Heard learned counsel for the petitioners and perused the paper book.

6. Though there is no legal infirmity in the order passed and no prejudice as such is going to be caused to the petitioners with the order impugned, however, still considering the fact that the judgments, sought to be relied upon by learned counsel or the petitioners, are not applicable and further the view taken by Karnataka High Court in Drakshayini's case (supra) on the issue is per incurium and there being no other judgment cited, this court considers it appropriate to deal the matter in dispute in detail.

7. For the purpose of appreciation of the issue raised, reference to various provisions of the Code of Civil Procedure (hereinafter described Civil Revision No. 870 of 2012 [3] as "CPC") would be required. The same are extracted below:

" Order XVI and Rules 1 and 1A.

ORDER XVI SUMMONING AND ATTENDANCE OF WITNESS

1. List of witnesses and summons to witnesses.- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).

1A. Production of witnesses without summons.- Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.

 Civil Revision No. 870 of 2012                                [4]




              ORDER XVIII RULES 4 AND 19
                             ORDER XVIII
              HEARING OF THE SUIT AND EXAMINATION OF
              WITNESSES

              xx                             xx                         xx

4. Recording of evidence.- (1) 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 documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the 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 rub-rule, consider taking into account such relevant factors as it thinks fit.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Civil Revision No. 870 of 2012 [5]

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the Commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.

xx xx xx

19. Power to get statements recorded on commission.-

Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under rule 4A of Order XXVI.

xx xx xx ORDER XXVI RULES 4 (1) (a), 16, 16A, 17, 18 and 18A ORDER XXVI COMMISSIONS Commissions to examine witnesses xx xx xx

4. Persons for whose examination commission may issue. - (1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of -

(a) any person resident beyond the local limits of its Civil Revision No. 870 of 2012 [6] jurisdiction;

              xx                            xx                           xx
              16.   Powers       of   Commissioners.-      Any     Commissioner

appointed under this Order may, unless otherwise directed by the order of appointment,-

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

16A. Questions objected to before the Commissioner.- (1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting.

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the court, and, where the court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.

(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court.

17. Attendance and examination of witnesses before Commissioner.- (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, Civil Revision No. 870 of 2012 [7] witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the Commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of India, and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court;

[Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.] (2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

18. Parties to appear before Commissioner.- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders. (2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

18A. Application of order to execution proceedings.- The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order."

8. The issue as to whether invariably in all cases, the witness, who appears in court, has to file affidavit for his examination-in-chief has been gone into by Hon'ble the Supreme Court in Salem Advocate Bar Association's case (supra), where a distinction has been pointed out pertaining to the witnesses who have been summoned by the court under Order XVI Rule 1 CPC or who have appeared of their own or have been brought by the party concerned in terms of Order XVI Rule 1A CPC. It has been opined that where the witness has been brought by the party Civil Revision No. 870 of 2012 [8] concerned himself, in such cases examination-in-chief is not to be recorded in court but shall be in the form of an affidavit. However, in the cases where summons have been issued under Order XVI Rule 1 CPC, stringent provisions of Order XVIII Rule 4 CPC may not apply as the court can give 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 cases, the court can direct a summoned witness to file his affidavit by way of examination-in-chief. Relevant paragraphs 17 and 18 thereof are extracted below:

"17. In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case examination-in-chief of the witnesses 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 1A, 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 26 and Order 18 together, it appears to us that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 26 Rule 4A, 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.

18. In cases where the summons have to be issued under Order 16 Rule 1, the stringent provision of Order 18 Rule 4 may not apply. When summons are issued, the court can give Civil Revision No. 870 of 2012 [9] 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 cases, the court can direct the summoned 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."

[Emphasis supplied]

9. Hon'ble the Supreme Court in the aforesaid judgment had also considered the issue as to whether once the court decides that evidence of a party has to be recorded by appointment of a Commissioner, the same has to be for his entire evidence or it can be partially. It was opined that it is the discretion of the court in the facts and circumstances of the case. Relevant paragraph 19 thereof is extracted below:

"19. 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 4 (2). 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 in court........"

10. Hon'ble the Supreme Court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., 2004(1) SCC 702 had opined that examination of a witness would include evidence-in-chief, cross-

Civil Revision No. 870 of 2012 [10]

examination or re-examination.

11. Now coming to the issue sought to be raised by learned counsel for the petitioners placing reliance upon Order XVIII Rule 4 CPC that examination-in-chief of a witness has always to be by way of affidavit to be tendered in court, the contention is totally mis-conceived. The answer to the question is provided for in Rule 19 of Order XVIII CPC itself, which begins with a non-obstante clause providing that instead of examining witnesses in open court, the court can direct their statements to be recorded on commission under Rule 4A of Order XXVI CPC. Order XXVI Rule 4A CPC, which also begins with a non-obstante clause, provides that the court may in the interest of justice or for expeditious disposal of a case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise of any person resident within the local limits of its jurisdiction. The statements so recorded shall be read in evidence.

12. In the light of provisions of Order XVIII Rule 19 and Order XXVI Rule 4A CPC, it is totally misconceived to contend that statement of a witness has always to be by way of affidavit to be tendered in the court and no commission could be appointed for recording the same.

13. Contention sought to be raised otherwise was also against logic. Once a witness can appear in court to tender his affidavit, there may not be any need for appointment of a commission for his cross- examination as he is already before the court. However, there can be some exceptions, where the cross-examination is deferred and developments subsequent thereto justify appointment of a commission for the purpose. Each case will depend on its own facts.

14. The judgment of Karnataka High Court in Drakshayini's case (supra) is per incurium as the provisions of Order XVIII Rule 19 CPC and Order XXVI Rule 4A CPC, especially with reference to non-obstante clause contained therein, have not been referred to.

15. In Rita Pandit's case (supra), the issue before Hon'ble Full Bench of Andhra Pradesh High Court was not for appointment of commission for the purpose of recording of evidence with reference to Civil Revision No. 870 of 2012 [11] Order XVIII Rule 19 and Order XXVI Rule 4A CPC. The real question, as is noticed in paragraph 1 of the judgment, was the supposed conflict between Rules 4 and 5 of Order XVIII before and after the amendment of CPC and the issue sought to be raised by the learned counsel regarding different opinions expressed by Hon'ble the Supreme Court in Salem Advocate Bar Association's case (supra) and Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (supra). The findings have been recorded in paragraph 12 thereof, which are extracted hereunder:

"12. Therefore, in our view, the matter is concluded. In all cases whether appealable or non-appealable cases examination-in-chief has to be taken on affidavit and where a witness is not under the control of the party who wants to examine him, he can take recourse to Order 16 Rule 1 of the Code as has been held by the Supreme Court in Salem Advocate Bar Association Tamil Nadu v. Union of India (supra). We also find that the two judgments of the Supreme Court reported in Salem Advocate Bar Association, Tamil Nadu v. Union of India (supra) and Ameer Trading Corporation Ltd. v. Shapoorji Data Prorcessing Ltd. (supra) are not in conflict with each other. Both of them were dealing with two different subjects."

16. Another important aspect, which is required to be dealt with is regarding the manner, the Commissioner is to record evidence. Elaborating the intention of Parliament, as contained in Order XVIII Rule 4(3) CPC, Hon'ble the Supreme Court in Salem Advocate Bar Association's case (supra) opined that wherever the evidence is recorded by the Commissioner, it is advisable that there should be simultaneously an audio recording of the statement of a witness so as to obviate any controversy at a later stage. Relevant part of paragraph 19 thereof is extracted below:

"19. ......... 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 Civil Revision No. 870 of 2012 [12] 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 least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage."

[Emphasis supplied]

17. The aforesaid safeguard is required to be followed by all the courts concerned wherever a Commission is appointed for recording of statements of the witnesses.

18. For the reasons stated above, I do not find any merit in the submissions made. Accordingly, the present petition is dismissed.

19. Considering the issue dealt with in the present case, in my opinion, copy of the order be circulated to all the courts concerned in the States of Punjab and Haryana and Union Territory, Chandigarh.

( Rajesh Bindal ) Judge 10.2.2012 mk (Refer to Reporter)

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