DOONGAR SINGH Vs. RAMESHWAR LAL

JUDGEMENT

(1.) The controversy is short but of importance and far reaching consequence is involved in this revision petition. The controversy involved in this revision petition is that in cases where appeal is provided, can examination-in-chief be taken on record by affidavit despite the specific provision under Rule 5 of Order 18, C.P.C. which provides recording of the statement of all the witnesses in the Court.

(2.) Learned counsel for both the parties submit that the point in controversy has already been decided by this Court in S. B. Civil Revision Petition No. 750/2002, Laxman Das v. Dhanpat Mal and others, decided on the provisions of Order 18, Rules 4 and 5, C.P.C. held that in case where orders (decree) would be appealable, the evidence is required to be recorded strictly as provided under Order 18, Rule 5, C.P.C. Learned counsel for the parties also pointed out that in the judgment of the Honble Supreme Court, delivered in case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, reported in 2003 (1) WLC (SC) (Civil) 384 : (AIR 2003 SC 189), the only point for consideration before the Honble Supreme Court was with respect to the provisions of Rule 4 of Order 18, C.P.C. and even in that case also, the Honble Supreme Court held that even in cases falling under Rule 4 of Order 18, the Court has discretion to direct that evidence may be recorded in Court or through commission and also has power to order for recording of evidence of some of the witnesses in Court and direct to record the evidence of rest of the witnesses by appointing Commissioner and further held that evidence can be recorded with the help of electronic media audio or audio visual methods.

(3.) It appears that from the bare perusal of the Order 18, Rule 5 that Order 18, Rule 5 is a specific provision providing provision for the specific set of cases in which appeal is allowed against the decree which may be passed by the trial Court whereas Rule 4 is rule of general nature. When there is a statutory provision dealing with a particular subject, then the general provision cannot be made applicable. It applies more effectually in the case where same statute provides specific provision for specific set of cases even after providing procedure for general application. In Rule 5 of Order 18, C.P.C. also, the word "shall" has been used providing that in cases in which an appeal is allowed, the evidence of each witness shall be taken down in the language in writing by or in the presence and under the personal direction and superintendence of the Judge or from the dictation of the Judge directly on the typewriter or if there exist reasons, which are to be recorded and if Court directs then the evidence can be recorded mechanically in the language of the Court in the presence of the Judge. The emphasis is of recording of the evidence of the witnesses in direct superintendence and presence of the Judge. The two rules, namely, Rules 4 and 5 of the C.P.C. can be read as provisions providing that in all cases, except the cases in which appeal is allowed, the examination-in-chief of the witness shall be on affidavit and in cases where appeal is allowed, the evidence of the witness shall be taken down by the Judge himself or in personal direction and superintendence of the Judge or from the dictation of the Judge only as a rule. The Rule 5 of the Order 18 has its own importance because of the reason that despite amendment of Civil Procedure Code in the year 1999 and in the year 2002 inserting Rule 4, the Rule 5 of the Order 18 has been retained. It will not be out of place to mention here that keeping the Rule 5 by itself is sufficient indication of importance of this rule to make it mandatory in addition to the fact that word "shall" has been used in Rule 5 of the Order 18, C.P.C.