ORDER
1. Heard, Plaintiff has filed Eviction Suit No. 8 of 1997, under the provisions of Bihar Buildings (Lease, Rent and 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 plaintiffs cross 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 examination-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. Order 16 Rule 1 provides for filing the list of witnesses by the parties, whom they proposed to call either to give evidence or to produce documents and obtaining the summons by them to such persons for their attendance in Court. Rule 1-A, on the other hand, provides production of witnesses without summons, where any party to the suit may bring any witness to give any evidence or to produce documents.
4. Recently the Apex Court had occasion to consider these aspects of the matter in Salem Advocate Bar Association, Tamil Nadu v. 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 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.
The Apex Court held as under :
“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 give 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.”
“Order 18, Rule 4(2) gives the Court the power to decide as to whether evidence of a witness shall be taken either by the Court or by the Commissioner. An apprehension was raised to the effect that the Court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in Court. We do not think that this is the correct interpretation of Sub-rule 4(2). Under the said sub-rule, the Court has the power to direct either all the evidence being recorded in Court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the Court. For example, if the plaintiff wants to examine 10 witnesses, then the Court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of other five witnesses evidence will be recorded in Court. In this connection, we may refer to Order 18, Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word ‘mechanically’ indicates that the evidence can be recorded even with the help of the electronic media, audio or audio visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later state.”
5. In the aforesaid circumstance, there is no reason to interfere with the impugned order. The Revision application is dismissed.