IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/03/2003
CORAM
THE HON'BLE MR.JUSTICE P.SHANMUGAM
C.R.P.PD.NO.488 OF 2003
AND
CMP.NO.3213 OF 2003
Subbammal ...Petitioner
-Vs-
Paramasivam Asari ..Respondent
The Revision is filed under Section 115 of the Code of Civil
Procedure against the fair and decretal order of the learned Additional
District Munsif, Ambasamudram dated 2.12.2002 in I.A.No.301/2002 in O.
S.No.457/1995.
!For Petitioner: Mr.P.M.Hariharan
^For Respondent : ---
:O R D E R
Petitioner is the plaintiff in the suit. O.S.NO.457
of 1995 is filed by him for declaration and for permanent injunction
restraining the second defendant from interfering with his possession of the
suit properties.
2. At the stage of trial, after the examination of
plaintiff’s side was completed, the defendant wanted to examine himself. The
defendant chose to file an affidavit under Order XVIII Rule 4 CPC(inserted by
Act 22 of 2002 with effect from 1.7.2002),by virtue of which, the
examination-in-chief of a witness shall be on affidavit .
3.The petitioner objecting to the said course filed a petition
under Order XVIII Rule 5 CPC to delete the proof affidavit and to direct the
chief examination of the defendant to be taken in the Court. The said
application was dismissed by the learned District Munsif, Ambasamudram. .
The present Revision is filed against the said order.
4.According to the learned counsel for the petitioner, the
amended provision under Order XVIII Rule 4 CPC is a general provision
providing for the examination-in- chief of the witness on affidavit. It must
give way to the special provision viz. Order XVIII Rule 5 CPC providing that
evidence of each witness should be taken down in the presence and under the
personal direction of the Judge . Therefore according to him,the order of the
learned Judge is unsustainable.
5. By adopting the affidavit procedure, he would not be able
to find out the demeanour of the witness and for these reasons, he seeks for
setting aside the order and for a direction directing the defendant to be
examined in the Open Court.
6.I have heard the learned counsel appearing for the
petitioner at length and considered the matter carefully.
7.The unamended provision of Rule 4 of Order XVIII is as
follows :
“R.4 Witnesses to be examined in open court.
The evidence of the witnesses in attendance shall be taken orally in
the open court in the presence and under the personal direction and
superintendence of the judge.”
Order XVIII Rule 4 CPC is now substituted and has been made for the purpose of
shortening the period of litigation. One of the mode adopted for that purpose
is to dispense with the examination-in-chief and in the place of examination,
an affidavit is required to be filed, a copy of which shall be given to the
opposite party. The provision further says that in any case, where documents
are filed and the parties rely upon the documents, proof and admissibility of
such documents shall be subject to the orders of the Court. The provision
also enables cross examination by the Commissioner appointed by it. The said
provision has been introduced in substitution of the then available provision
dealing with the taking of evidence. An exception to examination in open
court is provided.
8.Order XVIII Rule 5 speaks as to how evidence shall be taken
in appealable cases. As per this rule, the evidence of each witness shall be
taken in appealable cases in the language of the court in writing, by or in
the presence and under the personal direction and superintendence of the
Judge. Rule 5 was substituted by the Amendment Act 1 04 of 1976. Under the
old rule, the evidence could be taken down in the language of the court by the
judge or in the presence and under the personal direction and superintendence
of the judge. It was further provided that the evidence was to be recorded in
the form of narrative and after completion, was to be read over in the
presence of the judge and the witness and was to be signed by the judge.
Under the amended provision, it can also be taken down from the dictation of
the judge directly on a typewriter and there is no provision for reading over
the evidence and for signing by the judge.
9.Insofar as the amended Rule 4 is concerned, it is seen that
after considering the feasibility of dispensing with the chief examination,
the Parliament thought it fit to substitute the provision for recording of
evidence by affidavit in so far as the examination in chief is concerned. The
trial court normally takes evidence and the procedure as to how evidence is to
be taken is stated in Rule 5. Therefore, the counsel is not right in saying
that Order XVIII Rule 4 is a general provision and the existing provision
under Order XVIII Rule 5 is a special provision.
10.One of the terms of reference to the First National
Judicial Pay Commission required the examination of the work method and work
environment in courts to promote efficiency in judicial administration. The
Commission engaged the services of the Indian Institute of Management,
Bangalore. The said Institute, after an in-depth study, had submitted a
report, the summary of which formed part of the First national Judicial Pay
Commission Report. The IIMB, after referring to the C.P.C. Amendment Bill
1997, was of the view that the provision was a useful means of fighting delay
in disposal of cases. One of the recommendations was as follows :-
“Time taken to record oral evidence of witnesses must be reduced by
filing affidavits of examination-in-chief and filing the statements recorded
before a Commissioner, if need be, in cases of crossexamination and
re-examination.”
11.The Statement of Objects and Reasons of the Code of Civil
Procedure (Amendment) Act, 2002 (Act 22 of 2002) says that the C.P.C.
Amendment Act, 1999 was enacted by the Parliament with a view to cutting short
the delay on various levels. After its enactment, a large number of
representations were received, both for and against its enforcement. The Law
Commission of India, in its 163rd Report, also dealt with the Code of Civil
Procedure (Amendment) Bill, 1997 which was enacted later on as the C.P.C.
Amendment Act, 1999. Before action could be initiated for enforcement of the
said Act, the Bar Council of India and certain local Bar Associations, asked
the Government to re-look into some of the provisions which cause hardship to
litigants. Accordingly, the C.P.C. Amendment Act, 1999 and other proposals
to reduce delays in disposal of civil cases were discussed with legal
luminaries. The Government has further considered the matter in all its
aspects after consulting the Bar Council of India and other concerned and
based on the outcome of the deliberation, it had now proposed to further amend
the Code of Civil Procedure, 1908 consistent with the demands of fair play and
justice. The proposed Amendment, inter alia, seeks to provide that :
(h) The examination-in-chief of a witness shall be recorded on
affidavit. The cross-examination and re-examination of a witness in the High
Courts having original jurisdiction shall be recorded ordinarily by the
Commissioner and in courts subordinate to the High Court, such evidence shall
be recorded either by the court or by the Commissioner appointed by it. The
Commissioner shall also have the power to record the demeanour of a witness
and any objection made in regard to such matter shall be decided by the court
at the time of arguments of the case. …..”
Section 12 of the Amendment of Order XVIII is as follows :-
“4. Recording of evidence – (1) In every case, the
examination-inchief of a witness shall be on affidavit and copies thereof
shall be supplied to the opposite party by the party who calls 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.”
12.The Supreme Court, in a recent judgment, approved the
taking of evidence by Video-Conferencing. In the report of “The Hindu” dated
3 rd April 2003, it is stated that the Supreme Court has held that
video-conferencing satisfied the object of Section 273 of the Code of Criminal
Procedure that evidence be recorded in the presence of the accused. The
Supreme Court set aside the judgment of the Bombay High Court which quashed
the trial court’s order allowing videoconferencing of evidence of a Doctor in
the United States. Their Lordships have observed :
“Normally, a Commission would involve recording of evidence at the
place where the witness is. However, advancement in science and technology
has now made it possible to record such evidence by way of video-conferencing
in the town/city where the court is.”
From the above, it could be seen that wherever it is possible to shorten the
delay in proceedings, expert bodies like the Pay Commission and the Law
Commission have approved such procedure. The Parliament, after consulting all
concerned, has made the law which, in my view, is the least that could be done
in this regard insofar as the chief-examination is concerned. The petitioner
and the counsel should try to give effect to it and give a helping hand for
the expeditious disposal of litigation instead of trying to stall the
proceedings.
13.Apart from the above, the said position has been considered
by the Hon’ble Supreme Court in Salem Advocate Bar Association Vs.Union of
India ((2003) 1 Supreme Court Cases 49) wherein their Lordships after
considering the objection in reference to this provision have laid down the
following principle:
” When summons are issued, the Court can give an option to the witness
summoned either to file an affidavit by way of examination-inchief 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 XVIII Rule 4 CPC can be waived. Whether the
witness shall be directed to file an affidavit or to 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.”
Here, it is not a case of summoned witnesses. Even in the case of summoned
witnesses, the court has a discretion to decide having regard to the facts of
the case.
14.Therefore, the question raised by the learned counsel is no
longer res integra, since the Supreme Court has already laid down the law
upholding the provisions of Order XVIII Rule 4 CPC giving discretion to the
Court in reference to this matter.
15.It is an accepted principle of interpretation that when
there is a general enactment as well as special enactment in respect of the
same head in a statute, the particular enactment over-rides the general
enactment. The contention of the learned counsel for the petitioner that the
amended provision is a general enactment and that Order XVIII, Rule 5 of the
Code of Civil Procedure is a special enactment cannot be the correct way of
understanding. The question of general versus special generally arises in the
case of interpretation of two statutory provisions. Here, it is a case of
provisions of the same statute placed side by side and both the provisions can
function in their own parallel channels. If the words of the provisions are
clear, they must be followed and more so, they must be given effect to the
intendment of the enactment.
16.In this case, it is seen that the defendant has to be
examined himself and that he has already filed a proof of affidavit for his
chief examination. The petitioner/plaintiff has to cross examine him. It is
needless to state that the petitioner has no role in so far as the chief
examination is concerned and what he is going to say in the chief examination
has already been stated in the form of affidavit and a copy of which has
already been given to the petitioner herein and the petitioner shall have full
opportunity of cross-examining him in the Court.
17.Therefore the apprehension of the petitioner that he will
not be able to find out the demeanour of the witness cannot be accepted. The
learned Judge has considered the point raised and dismissed the application.
I do not find any irregularity or illegality in the order. Hence the Revision
fails and the same is dismissed. No costs. Consequently, CMP.No.3213 of 2003
is also dismissed.
VJY/ab
Index : Yes
Internet : Yes
To
The District Munsif
Ambasamudram.