ORDER
1. By order dated 31st July, 2002 Commissioner was appointed. Plaintiffs were directed to file their evidence on affidavit before the Commissioner. The plaintiffs have so done. Even before cross examination could commence recording of evidence various objections were raised in the matter of evidence filed on affidavit by way of examination-in-chief. That is how the matter has come before this Court.
2. Considering the issues involved and as it involved the large issue of interpreting under 18 as amended by the Acts of 1999 and 2002 of C.P.C. and considering the objections Counsel for the parties as well as other concerned were heard and the matter was kept for judgment as to the scope and ambit of under 18 and the Jurisdiction of this Court thereto.
After the judgment was reserved the Apex Court has now declared the law as to the scope and extent of Order 18 by the judgment dated 25th October, 2002 in Salem Advocate Bar Association v. Union of India, . From the judgment it is clear that the validity of the amendments has been upheld. In so far as Order 18 is concerned the law as declared emerges as under:-
(i) That recording evidence by way of examination-in-chief on affidavit would be mandatory in so far as witnesses brought by the parties for evidence in terms of Order 16 Rule 1A.
(ii) In so far as witnesses summoned under Order 16 Rule 1 the provision would not be mandatory. It will be, however, open to the Court to direct such a witness if desires is expressed and even otherwise for the Court suo moto to direct filing of affidavit by way of examination in chief.
(iii) On such evidence by way of examination-in-chief being filed on affidavit the cross examination is to be conducted either before the Court or the Commissioner.
The Court while directing cross examination can either permit cross examination before or before the Commissioner. It is further possible that part evidence can be recorded before the Commissioner and part before the Court. That does not mean that a witness can be interrupted in the course of cross examination. That evidence will have to be completed if the Commissioner has been so appointed or the Court is recording evidence.
2. Considering the ratio in Salem Advocates Bar Association (supra) as it emerges it is not necessary to consider the various arguments advanced or for that matter the judgment cited at the bar save and except the judgment of the learned Judge of the Rajasthan High Court in Laxman Das v. Deoli Mal and Ors., . The learned Judge of the Rajasthan High Court had taken a view that Order 18 Rule 4 would only apply in so far as those cases where the judgment would not be appealable. This case was decided on 2nd September, 2002. The judgment of the Apex Court has been rendered subsequently on 25th October, 2002. The language used in Order 18 Rule 4 is all suits as amended by the amendment Act of 2002. If this is considered with Order 18 Rule 5 as amended by the Act of 1976 prima facie is still continues to be in force and has not been amended or repealed by either the Act of 1999 or the Act of 2002. This gave rise to a possibility of the provisions of Order 18 Rule 4 and 5 leading to some ambiguity. However, considering the intent of the Parliament which has brought in amendment to Order 18 Rule 4 the intent of the Parliament becomes clear that it is to apply to all suits. Even before the amendment considering Order 19 Rule 2, it was open to the Court to permit parties to lead evidence on affidavit even in suits. See R.N. Engineers v. K.H. Desai, . Considering that in my opinion a co-joint reading of Order 18 Rule 4 read with Order 18 Rule 5 and the intention of the Parliament in substituting Order 18 Rule 4, it will have to be read to mean in all cases and is not restricted to those cases where an Appeal only lies. Ultimately these are procedural provisions in aid of justice. The purpose of the amendment was to end the delay in disposal of matters. Considering that object and as the expression used is in all suits Order 18 Rule 5 will have to give way to Order 18 Rule 4 as amended by the Act of 2002. If so read evidence by way of examination in chief in all suits will have to be by affidavits subject to what is earlier stated namely witnesses who are produced by the parties to appear before the Court. In respect of witnesses who are summoned to appear the provision is not mandatory, but directory and it is upto the Court to make such orders as it deems fit and proper on the facts of each case.
3. In the instant case the cross examination is yet to commence. There are serious disputes between the parties, which the Court has been called upon to resolve assuming it can intervene at this stage. If the object of the amendment was to reduce time of litigation, it is not possible to defeat that objective by hearing those objections at this stage. It will be open to this Court in the course of the cross examination to deal with the objections as also the evidence led on affidavit as to whether it is based on hear say or otherwise.
4. Considering the above the parties now agree that instead of the Commissioner the witnesses can be cross examined before this Court. In the light of that order dated 31st July, 2002 stands recalled, considering Order 18 and the inherent jurisdiction of this Court under Section 151 to do justice between the parties. In respect of fees of the Commissioner the parties to bear costs of the Commissioner as incurred and to pay the same if not already paid.
Stand over to 25th June, 2003.
Certified copy expedited.