JUDGMENT
P.G. Agarwal, J.
1. This revision under Section 115 of the CPC is directed against the order dated 25.2.2003 passed in title Suit No. 61/99 by the learned Civil Judge (Sr, Division), Bongaigaon.
The facts :
On 28.7.1994, the respondent plaintiff Sanghi Textiles Limited instituted Title Suit No. 61/99 praying for declaration that the repossession of the mill is illegal and for permanent injunction and an interim injunction was sought for but the said injunction was rejected and the matter came up before this Court in F.A.O. 3/2000, wherein this Court directed for evaluation of the assets of the mills and accordingly a Commissioner was appointed and the Commissioner submitted an inventory. The matter was sent back by the High Court with the direction to the trial court to dispose of the suit within a period of six months vide order dated 1.10.2002 in C.R.R 20/2002. Thereafter, after the completion of the pleading and filing of the list of documents and witnesses, the plaintiff filed affidavits of four witnesses as evidence on 25.2.2003 and the present petitioner defendants filed an application seeking time for cross examination. The defendant also filed an application for appointment of the Commissioner for valuation of the plant and machinery and the said application was rejected by the trial court. On 19.4.2003 the defendant filed an application seeking time to prefer a transfer petition before the District Judge and a leave petition against the order dated 25.2.2003 and hence the present revision, wherein the petitioner has challenged the order dated 25.2.2003, whereby the application under Order 26 Rule 9 read with Section 151 CPC for appointment of an approved valuer to fix the valuation of the plants and machineries was rejected by the trial court. The trial court after hearing both sides rejected the above prayer on the ground that there was an inventory prepared for plants and machineries as per the direction of our High Court and the said inventory was prepared by the appointed Commissioner and submitted report which has already been accepted by this Court. Further the High Court while directing preparation of inventory, had rejected the prayer of the appellant for valuation of the plant and machineries observing that it is not necessary to order for valuation of the plant and machineries, etc. In view of the earlier direction and findings of this Court, the trial court rightly rejected the application of the defendants more so, as the defendants have already listed the Surveyor as a witness for the defendants. We, therefore, hold that in view of the provisions of Section 115 CPC and considering the fact that the impugned order rejecting the application has not disposed of the suit or the proceeding and hence the revision does not lie. Shri A.S. Choudhury, learned senior Advocate appearing for the revision petitioner has also challenged the filing of the affidavit of four witnesses on behalf of the plaintiff as provided under Order 18 Rule 4 CPC. As stated above, the plaintiff has filed 4 affidavits towards the examination-in-chief of their four witnesses and the Court asked the defendants to cross-examine them. Order VIII Rule 4(1) and (2) reads as follows:
“4. Recording of evidence. – (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 call 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 if thinks fit:”
2. Shri Choudhury, however, submits that in view of the provisions of Order VIII Rule 5 CPC the provisions of Rule 4 or Order VIII are not applicable in the present case as the Title Suit 16/99 pending in the Court is appealable one. Order V reads as follows :
“1. Summons. – (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant :
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiffs claim :
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”
3. In support of his submission learned counsel has placed reliance on a decision of the Rajasthan High Court in the case of Laxman Das v. Deuji Mal, AIR 2003 Raj. 74. The Hon’ble Rajasthan High Court held :
“Order 18, Rule 4 of Amended Act provides for recording of examination in chief by affidavit in every case but R. 5 thereof remains unchanged which provides for recording of evidence by the Court in case the ultimate judgment and decree to be passed by the Court is appealable. To provide the harmonious construction of these provisions Order 18, Rule 4 is to be read with Order 18, Rule 13 but as there is no change in Order 18 Rule 5 it cannot be said that even in cases where the ultimate order shall be appealable the evidence can be recorded as provided either under Order 18, Rule 4 or Order 18, Rule 13. Giving any other interpretation would render Rule 5 thereof nugatory and such an interpretation is not permissible. Therefore, in view of the above, the words ‘in every case’, contained in Rule 4 or Order 18 have to be understood in a limited sense that every case wherein the ultimate order is not appealable and by no means it can take in its ambit the orders which would be appealable.
In view of the above, the position which emerges is that in cases where the final orders to be passed by the Court would not be appealable, the discretion has been conferred upon the Court to accept the examination-in-Chief in the form of affidavit as provided under Order 18, Rule 4 or to record the subsequent thereof by the Court itself as provided under Order 18, Rule 13 but in cases where orders would be appealable the evidence is to be recorded strictly as provided under Order 18, Rule 5.”
4. Learned counsel for the respondent plaintiff, on the other hand, has placed reliance on the observations of the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189. While considering the various provisions of the Code of Civil Procedure Amendment Act of 1999 and the Amendment Act of 2002, the Apex Court considered the provisions of Order XVIII, Rule 4 and held :
“In Order 18, Rule 4 has been substituted and Sub-rule (1) provides that in every case examination-in-chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr. Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. If often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through Court. Order 16, Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in Court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, if appears to us that Order 18, Rule 4(1) will necessarily apply to a case contemplated by Order 16, Rule 1-A i.e. Where any, party to a suit, without applying for summoning under Rule 1 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.
In cases where the summons have to be issued under Order 16, Rule 1, the stringent provision of Order 18, Rule 4 may not apply. When summons are issued, the Court can given an option to the witness summoned either to file an affidavit by way of examination in chief or to be present in Court for his examination. In appropriate cases, the Court can direct the summoned witness to file an affidavit by way of examination-in-chief. In other words, with regard to the summoned witnesses the principle incorporated in Order 18, Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case.”
5. Besides the Order IV and V, we may have a look of Rule 13 of Order XVIII, which reads as follows :
“Memorandum of evidence in unappealable cases. – In cases in which an appeal is not allowed it shall not be necessary to take down or dictate or record the evidence of the witnesses at length ; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.”
6. In Laxman Das (supra) the Hon’ble Rajasthan High Court did consider the provisions of Rule 13 but held that Rule 5 overrides the provision of Rule 4 and the effect of the above decision will be that Rule 4 will be non-existent one in a appealable case. On perusal of the judgments we find that the decision of the Rajasthan High Court was rendered on 2.9.2002 whereas the Hon’ble Supreme Court decided the case of Salem Advocate Bar Association on 25.10.2002, wherein it was held that compliance of Rule 4 is a must except in cases where summons have been issued under Order XVI, Rule 1.
7. In view of the decision of the Apex Court as stated above, and upon reading of the provisions of Order 18 as a whole, we find that as required under Rule 4, in every case whether appealable or non-appealable the examination in chief of a witness shall be on affidavit. The only exception provided is in cases where the summons have been issued under Order XVI Rule 1 the Court can give an option to the witness summoned either to file an affidavit by way of the examination-in-chief or to be present in Court for his examination. So far the provisions of Rule 5 and Rule 13 are concerned they relate to evidence, i.e., cross-examination and re-examination only, although the words ‘cross-examination’ and ‘re-examination’ has not been specifically mentioned to the provisions. We find that so far the provision of Rule 4(1) is concerned, it is applicable in case of examination-in-chief only and we, therefore, read the provisions of Rule 5 and Rule 13, as relates to cross-examination and re-examination only. As per the Rule 5, in cases where appeal lies, the cross-examination and re-examination is to be done in the manner provided in the above Rule. Whereas in unappealable cases, a memo of substance as provided under Rule 13 is to be resorted to. This seems to be the most harmonious construction of the provisions of Order 18 CPC and hence we are unable to subscribe to the view taken by the Hon’ble Rajasthan High Court. We also hold that the trial Court was justified to accept the affidavits towards examination-in-chief of the plaintiffs evidence and we direct the petitioner defendants to cross-examine them as provided under the law.
8. In view of the above, the revision petition is dismissed. The trial Court is directed to conclude the trial expeditiously as per the earlier direction of this Court. Send a copy of the order to the trial court.