Letters Patent Appeal No.187 of 2005,IN Writ Petition No.9523 of 2004

10th March, 2006

Petitioner Counsel: S/Shri. V. A. THORAT,KARIM VAKIL,ATUL DAMLE
Respondent Counsel: Shri. S. J. RAIRKAR,Shri. NITIN P. DESHPANDE

Cases Cited:
Salem Advocate Bar Association Vs. Union of India, 2003(1) ALL MR 391 (S.C.)=2003(3) Bom.C.R. 327 [Para 4,5,11]
Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., 2004(5) ALL MR 425 (S.C.) [Para 4,13]
Salem Advocates Bar Association, Tamil Nadu Vs. Union of India, 2005(5) ALL MR 876 (S.C.) [Para 4,12]
F.D.C. Ltd. Vs. Federation of Medical Representatives, 2003(2) ALL MR 510 [Para 4,5,13,14]

JUDGMENT

R. M. S. KHANDEPARKAR, J.:- Heard. Perused the records.

2. This appeal arises from the judgment and order dated 4th March, 2005 passed by the learned Single Judge in Writ Petition No.9523 of 2004. The appeal is essentially against the part of the impugned judgment which relates to certain observations in relation to the drafting and presentation of the affidavit under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 and the directions issued in that regard to the courts and the tribunals.

3. The said petition was filed against the order of the trial Court disallowing cross-examination of the deponents, who had filed their affidavits under Order XVIII Rule 4 of the Code of Civil Procedure. When the matter came up before the learned Single Judge, the advocate appearing on behalf of the respondents conceded that the deponents, who had filed the affidavits, were required to be subjected to cross-examination. In that regard though the petition could have disposed of by consent, the learned Single Judge, being of the opinion that the procedure for preparing the affidavits was not being followed in the manner it was required to be followed, proceeded to deal with the said issue and held that the procedure followed in that regard defeats the very purpose for which the provision under Rule 4 has been incorporated in the Order XVIII, under amendment to the Code of Civil Procedure in the year 1999 and 2002. The learned Single Judge, therefore, has issued certain directions whereby every affidavit under Order XVIII Rule 4 of the Code of Civil Procedure is required to be prepared by the lawyer for the party, and thereafter, to be transcribed by mechanical process, either with the help of typewriter or with the computer, for the purpose of filing thereof in the court, and at the same time the concerned advocate is required to retain copy of the draft affidavit prepared by the advocate on the basis of the information given to him by the concerned deponent till the deponent is discharged in the concerned case by the Court. Aggrieved by these observations and the directions, the appellants have filed the present appeal.

4. The challenge is on four counts. Firstly, that the point addressed to and decided by the learned Single Judge, did not at all arise for consideration in the matter. Secondly, the observations, based on which the directions are issued, are nowhere in the realm of interpretation of law, and in the process, the learned Single Judge has, in fact, assumed the role of a legislature. Thirdly, the scheme of the Amendment Act to the Code of Civil Procedure and particularly in relation to the Order XVIII thereof was a subject matter of scrutiny by the Apex Court on three occasions, and one of the decisions thereof was delivered prior to the impugned order. Fourthly, the procedure suggested is not in consonance with the provisions of law comprised under the Code of Civil Procedure in relation to the preparation of affidavit as well as filing thereof in the Court. Attention is sought to be drawn to the decisions of the Apex Court in the matter of Salem Advocate Bar Association & Ors. Vs. Union of India, reported in 2003(3) Bom.C.R. 327 : [2003(1) ALL MR 391 (S.C.)]; Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd., reported in 2004(5) ALL MR 425 (S.C.); Salem Advocates Bar Association, Tamil Nadu Vs. Union of India, reported in 2005(5) ALL MR 876 (S.C.), and of F.D.C. Ltd. Vs. Federation of Medical Representatives & Ors., reported in 2003(2) ALL MR 510.

5. Undoubtedly, the Writ Petition No.9523 of 2004 had come up before the learned Single Judge only on account of refusal on the part of the trial Court to permit the petitioner therein to cross-examine the deponents of the respondents, who had filed their affidavits under Order XVIII, Rule 4 of the Code. It is a matter of record that the respondents could not defend the impugned order. There is a clear finding in the impugned order, which reads thus:-

"At the threshold it may be pointed out that the contesting Respondent has been unable to defend the said order."

Indeed, as rightly submitted on behalf of the appellants, that was the end of the matter and was sufficient to put an end to the controversy sought to be raised in the petition. Applying the law laid down by the Apex Court in the matter of Salem Advocates Bar Association case (supra), which decision was, in fact, available before the learned Single Judge, it could have been advantageously referred to and the petition could have been accordingly disposed of. However, the learned Single Judge proceeded to consider the matter regarding preparation of the affidavit and the manner of filing thereof. Perhaps, it was in the anxiety to evolve the new methodology for speedy disposal of the proceedings before the trial court. Undisputedly, the amendment to the said Order XVIII had been incorporated essentially with the intention to expedite the disposal of the proceedings in the civil Court. Unfortunately, however, the impugned order, as rightly submitted on behalf of the appellants, if implemented as per the directions by the learned Single Judge, would bring about totally a different result. Rather than simplifying the procedure, it could complicate the same, and could result in delaying the disposal of suits. Consequently, it may frustrate the very purpose behind incorporating Rule 4 in Order XVIII of the Code of Civil Procedure.

6. Plain reading of the impugned judgment discloses that the point regarding preparation of the affidavit and the manner of filing thereof in the civil court, while adhering to the procedure prescribed under Order XVIII, Rule 4 of the Code of Civil Procedure, was not at all the subject matter of dispute or controversy before the learned Single Judge. It is equally true that the observations and the directions issued under the impugned judgment in relation to the preparation of the affidavit and the manner of filing thereof are not in consonance with the procedure prescribed in that regard under the Code of Civil Procedure, and the learned Single Judge himself was fully conscious of the same and has therefore observed in the impugned judgment itself, that:-

"It is no doubt true that there is no express provision in the C.P.C., pursuant to the substitution of Order 18 Rule 4 which specifically sets out the procedure as now held."

7. It is well settled law that in the course of interpretation of a statutory provision, the Courts cannot assume the role of Legislature, nor can it appropriate to itself the legislative powers, nor can, under the guise of interpretation, prescribe a procedure different from the one prescribed under the statute for the conduct of trial in civil proceedings.

8. Neither the Order XVIII nor any other provision in the Code of Civil Procedure, nor the law of evidence in force permits the methodology of preparation of affidavit suggested or directed by the learned Single Judge in the impugned judgment nor the Oaths Act nor any other statutory provision authorises the advocates, other than the designated Notaries, to administer an oath to any person desiring to make a statement on oath. The provisions of law under Order XVIII, Rule 4 of the Code of Civil Procedure, have been incorporated essentially with a view to simplify the procedure relating to recording of evidence. Bearing the same in mind, it would not be advisable to read in the said provision of law, any procedure which would give rise to duplication of work in relation to the preparation of affidavit or which could create various complications in the course of trial of a suit. If the modalities suggested by the learned Single Judge in the impugned judgment are accepted and followed, it would nullify the very object behind the provision under Order XVIII, Rule 4 of the Code of Civil Procedure. The preparation of affidavit by an advocate, maintenance of the original draft thereof and the parties right to use such draft in the Court at the time of the cross-examination of the deponent, rather than reducing the Court work in relation to the recording of evidence based on the affidavit filed under Order XVIII, Rule 4 of the Code of Civil Procedure, it would not only increase the same but would result in delay in disposal of a suit.

9. In the course of cross-examination of a deponent who has filed his affidavit, may, for some unknown or unpredictable reason, chose, intentionally or unintentionally, either to depose differently from what is stated in the affidavit filed in the Court, or may not be able to remember what is stated in the affidavit, in which case, the party cross-examining such deponent may insist for production of the original draft of the affidavit retained by the advocate, and on having found contradictory statement, may even require examination of the advocate, who had prepared the affidavit. Undoubtedly, in a given case, examination of the advocate to ascertain the truth in the matter may be necessary, but in such a case, it would not be permissible for the advocate to continue to represent the party whom he had been representing, and invariably in number of cases whenever a party to the proceedings who wants to avoid appearance of a particular advocate for the opposite party thereto, may insist for examination of such advocate in Court on one pretext or other, in relation to the affidavit of deponents and thereby may render the advocate impossible to represent such a party. Above all, the time which could be consumed in the process would defeat the very purpose of allowing parties to lead their evidence in the form of affidavits.

10. The whole intention of the legislature in bringing about the various amendments to the Code of Civil Procedure and particularly to the Order XVIII, Rule 4 of the Code of Civil Procedure, is to avoid delay in recording of the evidence, and therefore, the interpretation of the provisions in that regard has to be harmoniously done without forgetting the legislative intent behind the said rule. In any case, there is hardly any scope left for such interpretation in that regard, consequent to three decisions of the Apex Court.

11. Firstly in Salem Advocates Bar Association case (supra), reported in 2003(3) Bom.C.R. 327 : [2003(1) ALL MR 391 (S.C.)], it was clearly ruled that:-

"In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in very 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 and 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 1-A, 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 16 and Order 18 together, it appears to us that Order 18, Rule 4(1) will necessarily apply to a case contemplated by Order 16, Rule 1-A 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.

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 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.

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 (2) of Rule 4. 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 by the Commissioner while in the case of the other five witnesses evidence will be recorded in Court. 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 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."

12. In the later decision, reported in 2005(5) ALL MR 876 (S.C.) (Salem Advocate Bar Association, Tamil Nadu, (supra), the Apex Court had ruled thus :-

"The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX, Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-examination and re-examination in open court has not been disturbed by Order XVIII, Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order XVIII, Rule 4 has been examined and its validity upheld in Salem Advocates Bar Association's case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar Association's case, it has been held that the trial court in appropriate cases can permit the examination-in-chief to be recorded in the Court. Proviso to sub-rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order XVIII, Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rules controlling the discretion of the court to appoint Commissioner to record cross-examination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex question of title, complex question in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of the will etc. In such cases, as far as possible, the court may prefer to itself record the cross-examination of the material witnesses. Another contention raised is that when evidence is recorded by the Commissioner, the Court would be deprived of the benefit of watching the demeanour of witness. That may be so but, in our view, the will of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving Court's time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that Order XVIII, Rule 4 specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The Court would have the benefit of the observations if made by the Commissioner."

13. Similarly, in Ameer Trading Corporation Ltd.'s case (supra), the Apex Court has approved the decision of this Court in F.D.C. Ltd. case (supra), and in particular the paragraph 30 thereof, which reads thus:-

"The harmonious reading of R.4 and 5 of O.XVIII 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 R.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 R.13 of O.XVIII. In other words, mere production of the affidavit by the witness will empower the Court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to R.13 of O.XVIII 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 R.5 of O.XVIII. Undoubtedly, in both the cases, for the purpose of cross-examination, the Court has to follow the procedure prescribed under sub-rule (2) of R.4 read with R.13 in case of non-appealable cases and the procedure prescribed under sub-rule (2) of R.4 read with R.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 to be recorded by following the procedure prescribed under R.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 R.13 of O.XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of R.5, where as in case of non-appealable cases the Court would be empowered to exercise its power under R.13."

14. In F.D.C. Ltd. case (supra), this Court had also held that :-

"The procedure is meant to help the parties to assist the Court to arrive at the appropriate decision on the dispute between the parties. The Court, therefore, is not prohibited from allowing and in a given case, even directing to record the oral testimony of a witness in the open court or before the Commissioner, for the reasons to be recorded in writing. The reason should disclose justification for such direction. The Court is not helpless to order the recording of evidence in any other form, even when situation demands or warrants. There may be cases where witness may be either a blind witness or a witness may be an illiterate one. Certainly in case of blind person, in normal circumstances and till modern technology and the facilities are made available to the blind person as well as to the court, question of execution of affidavit of such person would not arise and it will be necessary for examination of such person before the court or the commissioner. In case of blind person therefore, question of adhering to Rule 4 of Order XVIII would not arise either in appealable cases as well as in non appealable cases and the court will have to follow the procedure prescribed under Rule 5 in case of appealable cases or under Rule 13 in case of non appealable cases even in case of recording of examination-in-chief of the witnesses. Similarly, in case of illiterate person the court can insist for examination of such person by adhering to provision of Rule 5 in appealable cases and Rule 13 in non appealable cases, irrespective of the fact that parties have produced affidavit in terms of Rule 4 or not. It will be entirely in the discretion of the Court to pass an appropriate order and insist for oral testimony of such witness irrespective of affidavit of such person being filed. There may be a case where it is impracticable or impossible to insist the presence of the witness in the Court for recording of evidence. In this respect, reference can be made to Rule 19 of Order XVI and Rule 1 of Order XXVI of the Code of Civil Procedure."

15. The above quoted decisions of the Apex Court clearly lay down the procedure to be followed in the matter of preparation of the affidavit as well as filing thereof in the Court as part of evidence by the parties. The same clearly lays down that the affidavits have to be prepared in accordance with the rules comprised under Order XIX of the Code of Civil Procedure and the method of filing or placing on record has to be in accordance with the Order XVIII, Rule 4 read with the Rules 5 and 13 thereof in appealable and non-appealable cases respectively. The law being clearly laid down by the Apex Court in this respect, there cannot be any occasion for this Court to issue any direction contrary to the law laid down by the Apex Court. Besides, once the legislature prescribes a specific procedure for the purpose of preparation of the affidavit and filing thereof in the Court, the Courts cannot assume the role of super legislature to prescribe a totally different procedure.

16. The legislature's wisdom in bringing about the amendment to the Code of Civil Procedure with the intention of expediting the disposal of the civil proceedings in civil courts is also apparent from the deletion of the provisions under Order VI, Rule 5 of the Code of Civil Procedure. In fact, the said provision had become a tool in the hands of the unscrupulous elements desiring to drag on the proceedings for indefinite period. Any interpretation of provisions of law which would result in creating obstruction or which would enable the parties to create hurdles in the speedy disposal of a suit, can never be welcome. If the proposed procedure, as suggested by the learned Single Judge in the matter of preparation of the affidavit and filing thereof, is accepted, the same would rather than helping the court in disposing of the proceedings expeditiously, it would assist the unscrupulous litigants in delaying the proceedings. The procedure can also invite undue hardship to the members of the Bar, and in that connection, the Bar Council is justified in challenging the impugned judgment in this appeal.

17. The statutory mandate for expeditious disposal of the civil suits is also apparent from the amendment brought about to Section 26 read with Order VI Rule 15 of the Code of Civil Procedure. Section 26 has been amended by introducing sub-section (2) thereof, which provides that "in every plaint, facts shall be proved by affidavit". Similarly, sub-rule (4) of Rule 15 of Order VI provides that "the person verifying the pleading shall also furnish an affidavit in support of his pleadings". These provisions are obviously introduced to do away with the need of repetitions of the facts stated in the plaint, and consequently, the plaint or written statement itself being able to be used as part of the evidence in the suit. Certainly, it could be contended that the plaint would not only contain statement of facts but also submissions on behalf of the plaintiff, inspite of the fact that the Order VII, Rule 1 specifically provides that the plaint has to contain the facts and not the submissions. Order VII, Rule 1(e) provides that the plaint shall contain the facts constituting the cause of action and when it arose. Clause (f) thereof provides that the plaint should contain the facts showing the Court having jurisdiction. At the same time, it cannot be disputed that in order to justify the claim of the plaintiff, a plaint may require to include certain submissions on behalf of the plaintiff. Likewise is the case in relation to the written statement. Nevertheless, Section 26 specifically refers to the facts in the plaint. Being so, the affidavit, which is contemplated under Section 26(2), is essentially in relation to the facts which are required to be stated in the plaint in accordance with the Order VII, Rule 1(e) and (f) of the Code of Civil Procedure. Once those facts are stated in the form of affidavit, it could be accepted by the trial Court as forming part of the evidence in terms of Order XVIII, Rule 4 of the Code of Civil Procedure, albeit, once it forms part of the evidence, the opposite party would be entitled to cross-examine the deponent in relation to those facts including the facts stated in the plaint. This would certainly avoid the need for further affidavit in relation to those facts which are already stated on oath in terms of the provisions comprised under Section 26(2) of the Code of Civil Procedure. This will certainly help in curtailing the delay in disposal of the proceedings. The legislature having therefore taken care to make various provisions with the intention of curtailing the delay in civil proceedings, any interpretation of such provisions of law has to be in consonance with those provisions and with the sole idea and purpose of curtailing the delay in the civil proceedings, undoubtedly, without ignoring the basic principles of natural justice.

18. For the reasons stated above, therefore, the impugned judgment so far as it relates to the observations and directions pertaining to the method of preparation of the affidavit and filing thereof under Order XVIII, Rule 4 of the Code of Civil Procedure cannot be sustained and need to be quashed and set aside.

19. The appeal, therefore, succeeds and the impugned judgment to the extent it relates to the methodology for preparation of affidavit and filing thereof under Order XVIII, Rule 4 of the Code of Civil Procedure is hereby quashed and set aside, with no order as to costs.

Appeal allowed.