V K RAMAPRASATH Vs. C R SIVANANDAM

JUDGEMENT

(1.) THESE civil revision petitions have been filed against the fair and decretal orders of even dated 16.10.2003, passed in O.S.Nos.6701, 6702, 6923, 6924 and 7294 of 1996, on the file of the 8th Assistant Judge, City Civil Court, Chennai.

(2.) ALL the revision petitioners are the defendants in their respective suits. The respondents/plaintiffs, during the course of the trial, filed affidavits for their chief-examination and copies of the same were served to the learned Advocate for the revision petitioners and the same was received by him subject to objection on its admissibility in view of the provisions ofO.18, Rule 5, C.P.C., contending proof affidavits are not permissible and parties have got to be examined in chief-examination in appealable cases. The trial Court did not agree with the objections of the revision petitioners and rejected their contention and accepted the proof affidavits filed on behalf of the plaintiffs for their chief-examination. Aggrieved by the same, the defendants have preferred these civil revision petitions.

(3.) THE learned Advocate for the revision petitioners would further contend thatO.18, Rule 4, C.P.C., provides for "recording of evidence, which states: " (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. " (4) THE Commissioner may record such remarks as it thinks material respecting the demeanor of any witness while under examination. Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. " (5) THE report of the Commissioner shall be submitted to the Court appointing the commission with sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. " (6) THE High Court or the District Judge, as the case may be, shall prepare as panel of Commissioners to record the evidence under this rule. " (7) THE Court may be general or special order fix the amount to be paid as remuneration for the services of the Commissioner. " (8) THE provisions of Rules 16, 16-A, 17 and 18 ofO.26 in so far as they are applicable, shall apply to the issue, execution and return of such commissions under this rule." Mr.P.Rathinadurai, the learned Advocate for the revision petitioners contended that this rule is only a general in nature and the words "in every case" occur in Rule 4 ofO.18, C.P.C., is subjectO.18, Rule 5, which is "special" in nature and it is settled law that a Special Act or Rule would exclude the general Act/Rule and therefore,O.18Rule 4 is subject toO.18, Rule 5, C.P.C., which the Court below failed to appreciate and came to the wrong conclusion, that the affidavit of chief-examination is permissible.