The examination-in-chief is to be permitted in the form of affidavit for recording of evidence

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 27th January 2020

Ameer Trading Corporation Ltd. V. Shapoorji Data Processing Ltd. (AIR 2004 SC 355)

Facts of the Case:

1. Interpretation of Order 18 rule 4 and 5 of the Code of Civil Procedure falls for the consideration in this appeal which arises out of judgment given by High Court of Judicature at Bombay passed on 03-07-2003. 
2. The respondent herein filed the suit No. 156/169 of 2001 in the Court of Small Cause Bombay against the appellant for eviction of the appellant inter alia on the ground that the provisions of Maharashtra Rent Control Act, 1999 had no application in relation to the premises in question. An affidavit was filed by the respondent herein purporting to be his examination-in-chief to be taken on evidence in the suit.
3. An application was filed by the appellant herein objecting to the said affidavit being accepted inter alia on the ground that the decree which may be passed in suit being an appealable one, Order 18 Rule 5 of the Code of Civil Procedure will be applicable.  

Judgment:

1. learned Trial Judge rejected the said application of the appellant stating, Court had already acted upon as per the provisions of Order 18 Rule 4 of C.P.C. (amended) which authorizes the court to receive the evidence on affidavit in any matter which includes the appealable order. In the given circumstances the affidavit need not be returned back to plaintiffs and be asked to give oral evidence in the matter. 
2. Being aggrieved by this order, appellant filed a writ petition before High Court which was dismissed by reason of impugned order stating, the court will not be inclined to interfere with the discretionary order passed by court below; as no prejudice will be caused to the Petitioner, if the view as taken by the Trial Court was to be upheld because the Petitioner being Defendant would get opportunity to cross-examine the Plaintiff and Plaintiff’s witnesses.   
3. Aggrieved by this judgment, appellant filed an appeal before Supreme Court, Mr. Rajan Narain, the learned counsel appearing on behalf of the appellant would submit that Order 18 Rule 4 and Order 18 Rule 5 of the Code of Civil Procedure should be read harmoniously and so read, it must be held that Order 18 Rule 4 will have no application in the appealable cases; and as logical corollary thereof the court must examine all the witnesses in court. He placed strong reliance on Laxman Das v. Deoji Mal and ors.^[1]  
4. Mr. Nariman, the learned senior counsel appearing on behalf of the respondent, submitted a bare perusal of the provisions contained in Order 18 Rule 4 of the Code of Civil Procedure would show that an affidavit incorporating examination-in-Chief of a witness has to be filed in every case and only in the event the said witness is required to be cross-examined, he would be produced in court. He further contended that Order 18 Rule 5, the learned counsel would submit, merely lays down the procedure for taking the evidence of the witness. In support of this contention reliance has been placed on F.D.C. Ltd. Vs. Federation of Medical Representatives Association India (FMRAI) and Others^[2].
5. The court was of the opinion that, 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.
6. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for 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-examination him. The defendant would not be prejudiced in any manner whatsoever the examination-in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open court. 

Applying the aforementioned principles of interpretation of statute, the court held that, Order 18 Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and as Order 18, Rule 5 cannot be read as an exception to Order 18 Rule 4.

^[1] AIR 2005 Rajasthan 74

^[2] AIR 2003 Bombay 371