Orissa High Court
Shyam Sundar Rout vs Braja Kishore Pradhan on 7 May, 2004
Equivalent citations: AIR2004ORI171, AIR 2004 ORISSA 171, (2004) 2 CLR 82 (ORI)
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. In both these Writ Petitions, the common orders dated 2-9-2003 and 11 -9-2003 passed by the learned Civil Judge (Junior Division), Kujang in Election Misc. Case No, 7 of 2002 are impugned.
2. The petitioner in W. P. (C) No. 9765/03 is opposite party No. 1 in Election Misc. Case No. 7 of 2002 pending before 'the learned Civil Judge (Junior Division), Kujang. He is the elected Sarpanch of Nuadhini Grama Panchayat in the district of Jagatsinghpur. Similarly the-petitioner in W.P. (C) No. 10010/03 is the petitioner in the said Election Misc. Case and he is the losing candidate in the election;
3. The common point of law Which needs determination in these two Writ Petitions is the interpretation of Order 18, Rules 4 and 5 of the Code of Civil Procedure as-amended by the Amendment Act of 1976 which came into force in the year 2002.
4. The short facts of the case are that the Civil Judge (Junior Division); Rujang in Election Misc. Case No. 7 of 2002 by order dated 2-9-2003 directed the petitioner in the said case to furnish evidence of all his witnesses including that of himself on affidavit in consonance with Order 18, Rule 4. C.P.C. On the next date, i.e. 5-9-2003, counsel for the opposite party No. 1 in the said case filed a petition for time for cross-examination of P.W. 8 and the case was adjourned to 11 -9" 2003. On 11-9-2003 a petition was filed by the said opposite party No. 11 seeking recall of the earlier order directing the petitioner in the case to furnish his evidence in chief by way of affidavit and further seeking direction to the petitioner in the said case to give his evidence in open Court. It was averred that the order passed in the Election Misc. Case being appealable in consonance with Order 18, Rule 5, C.P.C., the evidence-in-chief should be given in open Court and not by affidavit. This contention of opposite party No. 1 was strongly repudiated by the counsel for the election petitioner on the ground that there was no necessity to recall the earlier direction of the Court inview of the mandatory provision of Order 18, Rule 4, C.P.C. which stipulates to file the evidence-in-chief of witnesses by way of affidavit. The Court below relying upon the decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189, arrived at the conclusion that discretion vests upon Court below to decide as to whether a witness should be examined in Court or his evidence-in-chief should be filed by way of affidavit in consonance with Order 18, Rule 4, C.P.C. On the basis of such conclusion the Court below refused to recall the order directing the petitioner in the case to adduce his evidence-in-chief by way of affidavit and directed the petitioner in the case to remain present in Court to face cross-examination. The said Order as stated earlier is impugned before this Court.
5. Learned counsel for the petitioner in W. P. (C) No.' 9765/03 forcefully submitted that if Rules 14 and 5 of Order 18. C.P.C. are read harmoniously, the conclusion would be irresistible that Rule 4 will have 119 application to appealable cases. In other words; if an appeal is provided against a judgment or decree, the Court must examine the witnesses in Court, in support of such contention, reliance is placed on the decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India. AIR 2003 SC 189.
6. Learned counsel for opposite party No. 1 in W. P. (C)' No. 9765/03, the petitioner in the Election Misc. Case, at the other hand forcefully submitted that a bare perusal of the provisions of Order,18. Rule 4. C.P.C. leads to the irresistible conclusion that affidavit incorporating evidence-in-chief of a witness has to be filed in every case. It was further submitted that the amendment to the Code of Civil Procedure was enacted with a view to save unnecessary wastage of time which may be taken in examination of a witness.
7. For appreciating the rival contentions advanced by the learned counsel for the parties, it would be prudent to quote Order 18, Rule 4, C.P.C., as it originally stood, as follows:-
"4. Witnesses to be examined in open Court.- The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge,"
After the amendment, Order 18. Rules 4(1), (2) and (3) of C.P.C., which are relevant for the purpose of this case, read as follows:-
"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 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.
(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."
8. Rule 4 of Order 18 provides further procedure with regard to examination of witnesses. Similarly, Rule 5 refers to evidence which is required to be taken in cases where the appeal is provided in contradistinction with the cases where appeal is not provided as envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5 envisages a situation where the Court is required to take down evidence in the manner laid down therein which would mean that cross-examination or re-examination of the witness is to take place in the Court.
9. The evidence of a witness in common parlance would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order 18 speaks of evidence-in-chief. Such evidence-in-chief of a witness, as the rule stands now, in every case, is required to be on affidavit. The said provision has been enacted to curtail the time taken by Court in examining witnesses-in-chief. Order 18, Rule 4(2) provides for cross-examination and re-examination of witnesses which shall be taken by Court, or the commissioner appointed by it, as the case may be.
10. The amendment to Civil Procedure Code came into effect from July 1st of 2002 specifically providing under Order 18, Rule 4 that the examination-in-chief in every case shall be on affidavit. Rule 5 of the said Order was existing prior to the said amendment. Order 18, Rule 4 does not make any distinction between an appealable and a non-appealable case so far as recording of evidence is concerned. Such difference is found only in Rules 5 and 13 of Order 18. On a cumulative reading of all the Rules of Order 18 it appears that while under the unamended Rule the entire evidence was required to be adduced in Court, under the amended rule. the evidence-in-chief of a witness including that of a party to the suit is to be tendered on affidavit in every case. In other words, cross-examination or re-examination in the appealable cases will have to be considered in the manner laid down in the Rule subject to other sub-rules of Rule 4.
11. The Supreme Court in the case of Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 : (AIR 2004 SC 355) had the occasion to interpret Order 18, Rules 4 and 5, C.P.C. relying upon Halsbury's Laws of England, Vol. 44(1), 4th Reissue, para 1474 and applying the Heydon's rule (1584) 76 ER 637 accepted the view expressed by the Bombay High Court in the case of F.D.C. Ltd. v. Federation of Medical Representatives Assn. India (EMRAI). AIR 2003 Bom 371, wherein it has been held as follows (Para 30 of AIR SC):-
"The harmonious reading of Rules 4 and 5 of Order 18 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 18. In other words, mere production of the 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 18 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 18. 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.
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 is 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 18. The cross-examination of such deponent in ease of appealable cases will have to be recorded by complying with the provisions of Rule 5. where as in case of non-appealable cases the Court would be empowered to exercise its power under Rule 13."
12. Accordingly, the presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as per 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 in all cases, 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 whose evidence-in-chief has been filed by an affidavit. Thus the time of the Court would not be wasted in examining such a witness in open Court.
13. Considering the case on the touch stone of the decision of the Supreme Court in the case of Aameer Trading Corporation (AIR 2004 SC 355) (supra) land applying the 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 as Order 18, Rule 5 cannot be read as an exception to Order 18. Rule 4. In other words, whatever may be the nature of the suit/case, i.e. whether appealable or not, the evidence in chief of all the witnesses including the parties should be in the shape of affidavit and only if the other side requires to cross-examine the said witness, the witness shall be cross-examined in Court.
14. In, view of the, aforesaid conclusion arrived at by us, we find no infirmity in the impugned orders and decline to interfere with the same. In the result, we dismiss both the Writ Petitions. However, as the Election Misc. Case is spending before the Court long since, we direct the Court below to conclude the same as expeditiously as possible.
Parties to bear their own cost.
Sujit Barman Roy, C.J.
15. I agree