Writ Petition No.2461 of 2003

6th February, 2004

Petitioner Counsel: Mr. G. K. VORA,Mrs. L. G. VORA
Respondent Counsel: Mr. VIPIN MISHRA

Cases Cited:
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2003(1) ALL MR 391 (S.C.)=AIR 2003 SC 189 [Para 4]
Durgashankar S. Trivedi Vs. Babubhai Bhulabhai Parekh, 2003(2) ALL MR 565=2003(4) Bom.C.R. 626 [Para 7]

JUDGMENT

JUDGMENT :- This matter has been pending on Board for admission since March, 2003. Notice was issued on 16th April, 2003 and the proceedings in the suit before the Small Causes Court have been stayed. On 23rd July, 2003 notice was again issued for the specific purpose of informing the parties that the matter shall be heard and finally disposed of at the stage of admission. The matter has been adjourned on serveral occasions and was called out again yesterday. Counsel appearing on behalf of the Petitioners was heard. Counsel for the Respondent was absent and the matter was accordingly directed to be placed for judgment today. However, Counsel appearing on behalf of the Petitioners stated that he would personally inform the advocate for the Respondent so that if he desires to make any submissions before the dictation of the judgment commences this morning, he would be permitted to do so. Counsel for the Petitioners has stated before the Court that he has personally informed the advocate for the Respondent that the matter is being again listed today on Board. Today when the matter has been called out, a rather unusual request has been made to the effect that the Court should not pronounce judgment today and the matter may be taken up on some other day when the counsel for the Respondent will make it convenient to attend the Court. I decline to adjourn the matter which has been heard yesterday and which has been listed again before the Court today.

2. The Petitioners filed a suit in the Court of Small Causes against the tenant, T. Mascarenhas which was decreed ex parte on 4th September, 1987. In January, 1988 the Respondent instituted a declaratory suit in the Court of Small Causes. Summons in the suit was served upon the Petitioners who have filed their written statement on 28th February, 1994. Issues have been framed in the suit on 7th October, 1995. The suit was dismissed some time in July, 2002, but has thereafter been restored. The examination-in-chief of the Respondent was partly recorded on 30th December, 2002. On 14th January, 2003 an application was made by the Respondent for an adjournment on the ground that the Respondent had sustained a fracture of the left hip about three years ago and that she had been operated. The Respondent stated that she had difficulty in walking. Subsequently, the suit was dismissed on 27th January, 2003, but came to be restored on an application mad on the same day. On 6th March, 2003 an application was moved by the Respondent to the effect that further examination-in-chief be recorded by the appointment of a Commissioner. That application has been allowed by the impugned order dated 10th March, 2003.

3. Counsel appearing on behalf of the Petitioners stated before the Court that the Petitioners do not challenge the appointment of a commissioner for the purpose of recording evidence. However, it was urged that in view of the amended provisions of Order 18, Rule 4 of the Code of Civil Procedure, 1908, modalities need to be laid down by the Court about the manner in which such matters should proceed. More specifically it has been urged before the Court that the Trial Judge in the present case has merely directed that a Commissioner be appointed for recording evidence. Counsel submitted that it is necessary that an affidavit in lieu of the examination-in-chief of the Respondent is filed before the Trial Court in compliance with the provisions of Order 18 Rule 4(1) and that the proof and admissibility of documents upon which reliance is sought to be placed in the course of the evidence is determined by the Court. The submission was that unless the question of proof and admissibility is determined, serious prejudice would be caused to the Petitioners because the Petitioners would then be required to cross examine the Respondent even in respect of documents which are not yet proved or which have not been held to be admissible in evidence.

4. Rule 4 of Order 18 of the Code of Civil Procedure came to be inserted by the Amending Act of 2002. As a result of the amendment it has been provided that 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 a party who calls him for evidence. The Supreme Court had occasion to consider the provisions of Order 18 Rule 4 in its decision in Salem Advocate Bar Associated, Tamil Nadu Vs. Union of India (AIR 2003 SC 189 : [2003(1) ALL MR 391 (S.C.)]). The Supreme Court held that where any party to a suit, without applying to the Court for summoning a witness under Order 16 Rule 1 brings any witness to give evidence or to produce any document, the examination-in-chief of that witness shall be recorded not in the Court, but in the form of an affidavit. On the other hand, when summons had been issued to a witness under Order 16, Rule 1, the stringent provisions of Order 18, Rule 4 may not apply and the Court can given an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in the Court for examination. This the Supreme Court held was a matter of the exercise of judicial discretion having regard to the facts of each case.

5. The proviso to sub-rule 1 of Rule 4 lays down that where documents are filed and parties rely upon documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders of the Court. Sub rule 2 of Rule 4 then stipulates that the cross examination and re-examination of the witness whose examination-in-chief has been furnished on affidavit shall be taken either by the Court or the Commissioner appointed by it. Sub rules 3, 4, 5, 6 and 7 inter alia provide for the manner in which evidence would be recorded, the submission of the report of the Commissioner and for the remuneration of the services of the Commissioner. Sub-rule 8 of Rule 4 provides that the provisions of Rule 16, 16A, 17 and 18 of Order 26 in so far as they are applicable shall apply to the issue, execution and return of Commissions under the rule. The aforementioned rules under Order 26 lay down the powers of the Commissioner, the provisions to be followed where questions are objected to before the Commissioner and in regard to the attendance and examination of witnesses before the Commissioner.

6. Order 18, Rule 4 represents an effort by the legislature to expedite the process of recording evidence in suits. The legislature has taken due notice of the fact that recording of evidence in every case before the Court was liable to cause delay since a substantial part of judicial time would be consumed in recording evidence. Order 18, Rule 4 contemplates that the examination-in-chief of a witness has to be on affidavit and a copy of the affidavit has to be supplied to the opposite party by a party who calls him for evidence. The proviso to sub-rule 1 is important because it stipulates that the question of the proof and admissibility of the documents which are sought to be relied upon is subject to the orders of the Court. Order 18 does not exclude the application of the provisions of Order 13 of the Code which speaks of the production, impounding and return of documents. Under Rule 3, the Court is, at any stage of the suit, empowered to reject a document which it considers irrelevant or otherwise inadmissible recording the grounds of rejection. A document which is admitted in evidence has to be endorsed by the Court in the manner specified under Rule 4 of Order 13. Similarly, the Court has to endorse a document which is rejected as inadmissible under Rule 6 of Order 13. Under Rule 7 every document which is admitted in evidence or a copy whereof has been submitted shall form part of the the record of the suit. Trial Courts while implementing the provisions of Order 18, which Courts are under a mandate to implement so as to subserve the legislative object of expedition, must incorporate necessary directions that would achieve the legislative purpose. An order appointing a Commissioner to record evidence either under Order 26 or under Order 18, Rule 4(2) must be supplemented by judicial directions consistent with the statutory provisions to make them effective. The Court must issue suitable directions to the effect that the examination-in-chief of a witness which is to be in the form of an affidavit shall be filed before the Court with a copy to the opposite party. The court must proceed to resolve immediately thereupon questions as regards the proof and admissibility of documents. The question of proof and admissibility must be resolved by the Court in order to ensure that the cross examination and re-examination, if any, then proceeds to take place on the basis of documents which have been held to be proved and which have been admitted in evidence. Deferring the question of proof and admissibility of documents to an uncertain date in the future is neither in the interests of justice nor does it subserve the object of expedition. The Court must therefore at the outset determine the question of proof and admissibility of documents.

7. This view which I take is consistent with the judgment of a learned Single Judge of this Court in Durgashankar S. Trivedi Vs. Babubhai Bhulabhai Parekh (2003(4) Bom.C.R. 626 : [2003(2) ALL MR 565]). R.M.S. Khandeparkar, J. while interpreting the provisions of Order 18, Rule 4 held thus :

"The production of documents alongwith the affidavit will not make any difference as far as the procedure to be followed by the Court in the matter of admitting and exhibiting such documents in evidence. It is to be borne in mind that Rule 4 of Order XVIII does not deal with the procedure relating to admission and exhibition of documents in evidence. It only permits the parties and their witnesses to produce the documents alongwith affidavit. The production of documents alongwith affidavits is different from the admissibility and exhibition of such documents in evidence by the Court. It is also to be borne in mind that affidavit relating to examination-in-chief produced in terms of Rule 4, Order XVIII is to be received in evidence by following the procedure prescribed in Rules 5 and 13 of Order XVIII in appealable and non appealable cases, respectively. Mere filing of affidavit relating to examination-in-chief either of the parties to the suit or of their witness will not ipso facto form it to be part of evidence. In order that it should form part of evidence, it has to be dealt with in accordance with the procedure specified under Rule 5 or 13 as the case may be."

I am in respectful agreement with the aforesaid view.

8. In the circumstances, this Petition shall stand disposed of, confirming the order of the learned Trial Judge appointing a Commissioner for the recording of evidence. This would be subject to the following directions :

(i) A copy of the affidavit of the Respondent in lieu of the examination in chief shall be furnished to the Petitioners while the original shall in the first instance be filed in the Trial Court;

(ii) The learned Trial Judge shall within a period of four weeks of the filing of the affidavit determine the question as regards the proof and admissibility of documents, if any, that are sought to be relied upon by the Respondent - Plaintiff in the course of the examination in chief;

(iii) Upon a determination as aforesaid being made by the learned Trial Judge, the matter shall then stand referred to the Commissioner who shall take steps to record the evidence in accordance with the provisions of the Code.

The Petition shall stand accordingly disposed of. No costs.

Parties be given a copy of this order duly authenticated by the Sheristedar/Personal Assistant.

Order accordingly.