Calcutta High Court
The Howrah Motor Company Limited vs Exide Industries Limited on 19 May, 2005
Equivalent citations: (2005)3CALLT573(HC), 2006(4)CHN271
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
JUDGMENT Pinaki Chandra Ghose, J.
1. This is an appeal filed by the defendant/appellant in respect of an order dated 20th January, 2005.
2. The said order contains the following directions ;
(i) The plaintiff/respondent given liberty to file a Supplementary Affidavit in respect of the witness who had already filed his examination-in-chief by way of affidavit.
(ii) The plaintiff has been directed to file further Affidavit Evidence in respect of other witnesses proposed to be called by the plaintiff.
(iii) The defendant/appellant has been given liberty to file their Affidavit Evidence in similar fashion within two weeks thereafter even before the cross-examination of the first witness is complete.
3. Mr. Ghowdhury, learned senior advocate appeals on behalf of the appellant/ defendant submitted that each and every direction is erroneous and is liable to be set aside by reason of the direction being contrary to the High Court Rules (Original Side), the Evidence Act and the Code of Civil Procedure. The directions are inconsistent with recognized principles of fair trial of a suit, in the Original Side of this Hon'ble Court.
4. He drew our attention to Chapter 14 of the High Court Rules (Original Side) which deals with "Proceedings at the hearing of suits: Record of Evidence".
5. Rule 1 of Chapter 14 provides that upon the hearing of any suit or matter in Court or before a Judge, the evidence of each witness shall be taken down by or in the presence and under the superintendence of the Judge or one of the Judges. Such evidence shall be taken down in a narrative form when in long-hand and in the form of question and answer, when in short-hand, by such officers of the Court as may be appointed for the purpose and shall form part of the record. The transcript, of the short-hand note so taken shall be signed by the officer recording the note and be deemed the deposition of the witness and shall also from the part of the record.
6. It is, therefore, clear that there are specific Rules expressly and specifically dealing with the procedure for recording of evidence adduced by witnesses in course of trial of a suit. This field is occupied by subsisting High Court Rules.
7. The Rule so long it subsists excludes the application of the provisions of the Code of Civil Procedure, which provides examination-in-chief of witnesses by way of filing affidavits.
8. He also drew our attention to Order XVIII Rule 4 of the Civil Procedure Code (hereinafter referred to as 'CPC') which has been introduced in amended CPC with effect from 1st July, 2002. It provides for examination-in-chief by way of filing an affidavit. It is submitted that this Rule cannot be applied to the Original Side of the Calcutta High Court so long the Rules contained in Chapter 24 of the High Court Rules subsist, the operation of the amended provisions of the CPC is exclude by the specific High Court Rules.
9. He further submitted that Order XVIII Rule 4 cannot and should not have any application in suits tried by a single Judge of the Original Side of High Court because the provision contained in this Rule is inconsistent with the specific Rule relating to the recording of evidence at the haring of the suit.
10. He also drew our attention to Section 135 of the Evidence Act, which provides that the order in which witnesses are produced and examined, shall be regulated by the law and practice for the time being relating to civil and criminal procedures respectively and in the absence of any such law, by the discretion of the Court. Since there is a specific Rule relating to the recording of evidence by a witness, the question of exercising any discretion by the Court cannot arise.
11. It is well settled that whenever there is a conflict between a provision in the CPC and High Court Rules of a Chartered High Court, the Rules will prevail in (Shaw & Co. v. B. Shamaldas & Co.). His Lordship P.H. Mukharji, Judge (as His Lordship then was) observed as follows:
I. assent to the general proposition that under the Rule making powers of the Chartered High Court regulating the procedures can be made by the High Courts, which are even inconsistent with and different from the Rules laid down in the first schedule of the CPC and when such Rules are so framed they prevail over the Rules of the first schedule of the CPG.
12. He also placed reliance on AIR 1999 Cal Page 29 (Full Bench) (Ratanlal Nahata v. Nandita Bose) when Court observed as follows:
A Chartered High Court is entitled to make rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction, which need not be consistent with the provisions of the Code, but must be consistent with Letters Patent.
13. He also contended that the point is not settled beyond any controversy by the Judgment [Irdium India Telecom Ltd. v. Motorola Inc.)
14. It appears to us, in that case the question arose whether the Original Side of the Bombay High Court was governed by the Original Side Rules or by the amended provisions of the Order VII Rule 1 of the CPC. It was decided by the Hon'ble Supreme Court of India that a Rule framed by the High Court under the powers conferred on the Chartered High Court by the Letters Patent being inconsistent with the provisions of CPC would prevail over the CPC. The Supreme Court approved of the decision made by the Full Bench of the Calcutta High Court in Manickchand Durgaprasad v. Patabmull Rameswar .
15. In the said Full Bench decision of the Calcutta High Court, it was held if any Rule framed by the High Court under clause 37 of the Letters Patent be inconsistent with or confers any additional powers besides what is granted by the CPC, the Rule framed under clause 37 will prevail over the corresponding provision of the CPC.
16. We have also found that although the Apex Court held that this view taken was correct but it was argued before the Hon'ble Supreme Court that the legal effect of the Section 16 of the Amending Act of 2002 was to sweep away anything that was in the High Court Rules, which was inconsistent with an amended Civil Procedure Code. This contention was negatived by the Hon'ble Supreme Court and it has been held that the Amending Act did not in any way affect the special hierarchical status given to the proceedings before the Chartered High Courts on its Original Side.
17. It was also urged before the Hon'ble Supreme Court that Rules made by the High Court for regulating a procedure on the Original Side were subordinate legislation and therefore, must given way to the superior legislation, namely substantive provisions of the CPC.
18. The Hon'ble Supreme Court rejected such contention. The Hon'ble Supreme Court observed that far from doing away with the Letters Patent, the Amending Act of 2002 has left unscathed the provisions of Section 129 of CPC and what follows therefrom. The Judgment of the High Court that a High Court was governed by the Original Side Rules and not by the CPC was upheld by the Hon'ble Supreme Court.
19. It is also to be noted that a learned single Judge of this Hon'ble Court held that Rules framed by the High Court even when inconsistent with the provisions of the Code, the Rules will prevail (see 2005(1) CHN 478).
20. Therefore, it is clear that if Chapter 14 of the Rules prevails over Order XVIII Rule 4 of the CPC then the question of filing an examination-in-chief by way of affidavit in a trial of suit by a single Judge sitting on the Original Side of the High Court cannot arise.
21. It was contended before us in this appeal that the plaintiff/ respondent filed an affidavit by way of examination-in-chief before His Lordship Arunava Barua, J. who fixed a date for cross-examination. The defendant did not prefer an appeal from the said order, therefore, the defendant/appellant should not be allowed to challenge at least the filing of affidavit by the plaintiff/respondent's first witness by way of examination-in-chief. It is submitted that the said order is contrary to the specific Rules of this Hon'ble Court, which prevails over CPC, such order is manifestly erroneous and should be set aside. It is further submitted that there was no occasion for filing an appeal against any order of His Lordship Arunava Barua, J. In any event there is no estoppel against a statute. It may be mentioned that under Section 127 of the CPC, the Rules made by a High Court would have the same force and effect within the local limits of the jurisdiction of the High Court as if they have been contained in the first schedule. Even otherwise it cannot be doubted that the Rules are deemed to be statutes. It is title law that there is no estopple against statute. If authority is at all needed for the proposition, reference may be made to 1999(4) SCC 458 (Electronic Corporation Ltd. and Ors. v. Secretory, Revenue department, Government of A.P. and Ors.).
22. It is also submitted that the affidavit filed before His Lordship Arunava Barua, J. should be rejected and the witness should be allowed to adduce evidence only in accordance with the Rule prevailing on the Original Side of the High Court
23. Mr. Chowdhury further contended that the direction to file a supplementary affidavit by the same witness, which was objected to by counsel for the defendant, is wholly erroneous. This was done with a view to allow the witness to improve his case.
24. Mr. S.P. Sarkar, learned senior advocate opposing the appeal on behalf of the plaintiff/respondent contended that the appellant/ defendant agreed to abide by the earlier order passed by the Lordship Arunava Barua, J. directing the plaintiff/respondent to file an affidavit of evidence. Mr. Sarkar contended that the liberty to the respondent to file supplementary affidavit is perfectly in order since the defendant has not yet started cross-examining the plaintiffs witness. Such direction is not contrary to provision of Section 135 of the Evidence Act. The further direction which has been given by His Lordship there cannot be any objection on behalf of the appellant/defendant as they are not prejudiced by such direction upon the plaintiff/respondent to file affidavit of evidence of their other witnesses. He further contended that the plaintiff/respondent has the carriage of proceeding. It is duty of the plaintiff to begin the hearing and to produce his evidence first. Thereafter, the other party i.e. the defendant would produce his evidence. Therefore, the Rule of the Original Side to that extent is silent and accordingly the provisions of Order VIII Rules 1 and 2 should be followed and the High Court has been given discretionary power to change this order of examining witnesses, which has been inserted by way back in 1927, i.e. Rule 2A. It is the prerogative of the High Court to decide the matter. Therefore, to expedite the matter the Hon'ble first Court passed the said order. According to Mr. Sarkar no case has been made out by the appellant/defendant that they have suffered prejudice. However, Mr. Sarkar admitted that in the event of any conflict between the provisions of the CPC and that of the Original Side rules, the Original Side Rules and practice would prevail. There is no dispute on this score and law is well-settled. It is true that the Original Side practice, as regards taking of evidence, is limited to recording of evidence before the Hon'ble Judge without any objection. He further contended that the Original Side rules are silent as to the sequence.
25. He further submitted that by virtue of the latest amendments introduced by the Code of Civil Procedure (Amendment) Act 2002, such provisions of Original Side Rules deemed to have repealed. He drew our attention to Section 16(1) of the said Act which runs as follows:
Section 16(1) : Any amendment made, or any provisions inserted in the Principal Act by the State Legislature or High Court before the commencement of the Act shall, except in so far as such amendment or provisions are consistent with the Principal Act as amended by this Act, stand repealed.
26. Therefore, he submitted that the appeal should be dismissed.
27. In reply, Mr. Chowdhury submitted that the defendant never accepted the said direction for filing the supplementary affidavit. It is well settled that in an examination-in-chief, a witness should not be permitted to improve his case. Allowing a witness, who has already concluded his examination-in-chief by filing his affidavit, is like recalling the same witness for further examination-in-chief. This is not permitted. When a witness can be recalled has been provided in Order XVIII Rule 17 of the CPC. The Court may at any stage recall any witness, who has been examined and put such questions to him, which the Court thinks proper. This is not the same as allowing the same witness to be recalled for the purpose of giving evidence for further examination-in-chief just because the evidence already adduced by him is not considered by the plaintiff to be "comprehensive". It was contended by the respondent that the first witness did not finish or concluded his examination-in-chief. According to Mr. Sarkar it should be deemed that he was still in the Box and his examination was not concluded yet. This contention is untenable. The moment the examination-in-chief is filed, his examination-in-chief is deemed to be concluded. This is not a matter of "individual perception" as contended by the respondent in this appeal.
28. Recalling of the same witness for further examination-in-chief is permitted in exception cases, if the Court so desires only after the examination-in-chief and the cross-examination and re-examination is concluded.
29. the impugned order directed that all the witnesses of the plaintiff should file their examination-in-chief by affidavit and thereafter all the witnesses of the defendant, should put their examination-in-chief by way of affidavits simultaneously. It is impermissible, even if one assumes that Order XVIII Rule 4 of the Code applies. Even under Order XVIII Rule 4 this procedure of filing of examination-in-chief by all the witnesses of the plaintiff and defendant is not permissible.
30. We have found in Section 138 of the Evidence Act which provide for order of examination. The witness shall be first examination-in-chief and thereafter if the adverse party so desires, cross-examined and then, question of re-examination comes in a particular sequence to be followed. It cannot be ordered that all the witnesses should file their examination-in-chief by way of affidavits and then everybody shall be cross-examined and then, everybody shall be re-examined. In our opinion this is not only contrary to practice but will lead to absurd results.
31. The defendants have the right to decide about which witness is to be called and which witness need not be called after cross-examination of the plaintiffs witnesses are complete. If the plaintiffs case is not proved or is totally demolished by cross-examination, then there is no reason why the defendant would call any witness at all. For instance, if the plaintiffs witnesses under cross-examination admit before the Court that the plaintiffs case in the plaint is unfounded or untrue and then the defendants are not required to call any witness. To ask the defendant's witness or witnesses to put in his or their examination-in-chief necessarily prejudice a fair trial. The defendant is not required to show his evidences before hand. This also prejudices his cross-examination because even before the witness of the plaintiff is cross-examined, the plaintiff has the advantage of knowing the examination-in-chief of the defendant and all his witnesses. This is something which is unknown in civil practiced
32. In cases, where plaintiffs fail to prove any document tendered by them, the defendant is required to file their examination-in-chief dealing with those documents, which are not yet proved. If a document is not proved by the plaintiff, the defendant may not refer to the document at all. In the instant case, the defendant is being forced to deal with those unproved documents at a stage when the plaintiffs cross-examination has not even started.
33. A party can file an affidavit by way of examination-in-chief. He can also compel a person under his direct control to file an affidavit. Whenever a third party is proposed to be called as and when required, it is not possible for the defendant to adduce examination-in-chief of that witness by way of affidavit. This problem was discussed in (Salem Advocate Bar Association, T.N. v. Union of India) while discussing the validity of the amendments sought to be introduced in the CPC. The Hon'ble Supreme Court observed in applying Order XVIII Rule 4 that it was not imperative to have the examination-in-chief always by affidavits, in (Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd.).
34. The Hon'ble Supreme Court observed that oral evidence is not imperative which necessarily implies that a many cases there may be affidavit evidence and there may be oral evidence. But it appears to us all these observations are not relevant for the purposes of this appeal, because the High Court is guided by its own Rules and by the provisions of the Order XVIII of the CPC.
35. The defendant by the impugned order is compelled in disclose his evidence and to put forth on affidavit evidence all the witnesses proposed to be called by the defendant. It is impossible for the defendant to assess what evidence to adduce unless the evidence of the plaintiff is complete. Unless the cross-examination of the witness of the plaintiff is complete, the defendant is not in a position to decide what evidence what evidence is required to be adduced.
36. It was argued that calling upon the defendant to file their examination-in-chief even before the cross-examination of the plaintiffs witness was of no consequence because under the new CPC, the parties were required to file their documents along with their pleadings and the defendant is not taken by surprise. This contention proceeds on the basis of the fundamental mistake that the pleading is proof and filing of documents and papers amount to proof. Just because the parties are required to file their documents along with their plaint and written statement, the defendant cannot be compelled to proceed on the basis of what has been pleaded or whatever documents has been filed by the plaintiff, are already established and proved. The defendant cannot be compelled to deal with the same before the plaintiff proves and establishes his case. The plaintiff can at the time of trial in accordance with the law of evidence can prove his case and the trial of a suit does not contemplate a trial of suits by affidavits. Affidavit is not included in the evidences.
37. It is also to be noted that in a writ application disputed question of facts are not decided and the writ Court decides writ application on affidavits but when there are disputed questions of facts, the writ Courts generally do not entertain the writ petitions and in those case the writ Court could have decided the matter without giving a direction that the matter should be tried by a Civil Court. In interlocutory stage, when the Courts are concerned about prima facie case, the Court tries interlocutory applications on affidavits. Similarly, in a winding up petition, claims are adjudicated on the basis of the affidavits by the Company Court. But when Court feels the claims should be adjudicated upon in trial in those cases, Court directs and relegates the claims to a suit.
38. It is submitted before us that the order palpably wrong and should be set aside. It is also urged that appeal has been admitted and is maintainable. The impugned order according Mr. Chowdhury, takes away the right of the defendant/appellant to cross-examine the plaintiffs witnesses. This order is an appeal able order since the said order takes away a valuable right and a varied right of the appellant to have the fair trial and accordingly it is submitted that the appeal should be allowed.
39. We have considered the points urged before us and must accept the position that if there is any conflict between the CPC and High Court Rules of a Chartered High Court, the Rules will prevail. We have further found from the CPC and we have considered the Section 129 of CPC and also Order XXXXIX Rule 2 of the CPC and we have found that there cannot be any doubt that the Order XVIII Rule 4 cannot play a role when a suit is being tried before the Original Side of the High Court.
40. In our considered opinion we have to express ourselves that even the order is being passed by His Lordship Arunava Barua, J. directing affidavit of evidence and the appellant/defendant did not raise any question at that point of time but in our opinion the said order is also not in accordance with the rules of the Original Side, hence we have to hold that the said order cannot have a binding effect and non-filing of appeal by the appellant from the said order cannot take away a vested right of the appellant. It is a fact that no appeal has been preferred from the said order but at the same time it is a fact that the appeal is pending before us from an order which is a consequential order relying on the order passed by His Lordship Barua, J. directing, filing of an affidavit evidence. We do not find any reason to accept such position in law and with respect to the Hon'ble first Court, which may be a novel one but we cannot brush aside the opinion of this High Court and the Hon'ble Supreme Court where the Court has already expressed their views even after amendment of the CPC by amending Act of 2002 (sic). The Full Bench of this High Court has already held the Chartered High Court is regulated by the procedures framed by Rules in exercising its jurisdiction in the Original Side.
41. We have also found the same opinion expressed by the Hon'ble Supreme Court in Iridium India Telecom Ltd. v. Motorola Inc (supra) where the Hon'ble Supreme Court has also approved the decision made by the Full Bench of this High Court (supra). Therefore, we do not find much difficulty to come to the conclusion accepting the points urged by Mr. Chowdhury before us.
42. Accordingly, we are unable to accept the directions given by the Hon'ble first Court as a correct procedure to be followed in the Original Side and we set aside the said order and direct that the Hon'ble first Court would be pleased to follow the age old practice of the Original Side as has been specifically provided in Chapter 14 of the Original Side Rules.
43. We also want to place it on record that when a witness comes to depose before the Court, the Court can watch the demeanor of the witness and by filing affidavit evidence it is not possible for the Court to watch the witness which is also a reason to follow the rules of the Original Side. Because body language of the witnesses also shall have an effect in the proceeding. We also feel that the Court cannot watch the witnesses and further if the affidavit evidence is filed. The witnesses will be guided by the lawyers and the affidavit will be prepared with the advise of the lawyers.
For the reasons stated hereinabove this appeal is allowed.
Pravendu Narayan Sinha, J.
44. I agree.