RITA PANDIT Vs. ATUL PANDIT

JUDGEMENT

(1.) This matter has come before us on a reference made by a Division Bench of this Court vide order dated 19-2-2004. By this order the Division Bench recorded that the question involved in the batch of cases was of considerable importance. Prior to this order, an order was passed by the same Bench on 3-12-2003 expressing an opinion that there were different views expressed in two decisions of the Supreme Court with regard to interpretation of Order 18 Rule 5 of the Code of Civil Procedure (for short "the Code"). Those two decisions of the Supreme Court are Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2002 (6) ALD 34 (SC) = AIR 2003 SC 189 and Ameer Trading Corporation Limited v. Shapoorji Data Processing Limited, 2004 (1) ALD 34 (SC) = 2003 (1) DT (SC) 1177. First judgment was delivered on 25-10-2002 and the subsequent judgment on 18.11.2003. We have heard the learned Counsel for the parties and also Mr. Vilas V. Afzulpurkar who was appointed as an amicus curiae to assist this Court. The learned Counsel appearing for the parties have argued the matter in detail. Although the Reference Court has stated that the real scope of Order 18 Rules 4, 5,13 and 19 of the Code has to be gone into the matter, but the real question which has been argued before us is the supposed conflict between Rules 4 and 5 of Order 18 of the Code. Rule 4 of Order 18 of the code was substituted by Amendment Act, 1999 and after amending it reads as under:

(2.) Rule 5 was substituted by the Amendment Act, 1976 which reads as under:

(3.) The contention of the learned Counsel is that if it is held that in every case examination-in-chief has to be done by an affidavit, then Rule 5 will be rendered redundant and useless, therefore it is evident that examination-in-chief can be given by affidavits only in those case in which an appeal is not allowed against the final judgment and in cases in which appeal is allowed, the evidence has to be recorded in terms of Rule 5. That means it has to be taken down in writing or in presence and under personal direction or superintendence of the Judge. It is further contended that there is no conflict between Rules 4 and 5. Rule 4 applies only to those cases where against the final judgment appeal is not allowed, whereas Rule 5 applies to those cases where an appeal is allowed against the final order/judgment. Rule 4 cannot control Rule 5 and a meaning cannot be ascribed to Rules 4 and 5 to make one of the Rules redundant. It is further contended that Rule 13 lays down that in cases in which appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses at length, but the Judge, after examination of each of the witnesses, may make in writing a memorandum of the substance of what the witness has deposed. Therefore Rule 13 goes in accordance with the spirit of Rule 4. Rule 19 is enacted for altogether different purposes and the purposes are mentioned in Rule 4A of Order 26 and in case a Commissioner is appointed for examination of witnesses in terms of Rule 19, that will be for the purpose of examination-in-chief and cross-examination both. This question has already attracted the attention of various High Courts as well as the Supreme Court. Therefore we will deal with the judgments which have dealt with this question directly in the first instance.