PRABHUDAYAL SATYANARAUAN Vs. JAGANNATH PODDAR

JUDGEMENT

(1.) HEARD . Plaintiff has filed Eviction Suit No. 8 of 1997, under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, against the defendants. On 15.7.2003 the plaintiff filed his examination - in -chief on affidavit under Order 18, Rule 4 (1) of the Code of Civil Procedure. The defendants filed objection (Annexure 1) thereto. The trial court, however, by impugned order dated 15.7.2003 rejected the defendants ' objection and under Order 18 Rule 4(3) allowed the plaintiff 'scross examination, as a witness in the suit, to be recorded by Commissioner. In my view, the learned Munsif, Chaibasa rightly did so.

(2.) ORDER 18, Rule 4 has been introduced by way of amendment in the Code with effect from 1.7.2002. Under Sub - rule 4 (1) the plaintiff was entitled to file ex:amina -tion -in -chief on affidavit and thereafter it was court 's discretion under Sub -rule 4 (3) regarding recording of her cross -examination either in court or by commissioner.

(3.) RECENTLY the apex Court had occasion to consider these aspects of the matter in Salem Advocate Bar Association, Tamil Nadu vs. Union of India (AIR 2003 SC 189) wherein it was observed that reading the provisions of Order 16 and Order 18 together it appears that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule 1A, i.e. where any party to a suit, without applying for summoning under Rule I 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. The apex Court held as under: