Ameer
Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd [2003] Insc 567 (18 November 2003)
Cji,
S.B. Sinha & Ar. Lakshmanan. S.B. Sinha, J :
Special Leave Petition (civil) 13858 of 2003
Leave
granted.
Interpretation
of Order 18 Rules 4 and 5 of the Code of Civil Procedure falls for
consideration in this appeal which arises out of a judgment and order dated
3.7.2003 passed by the High Court of Judicature at Bombay in W.P. No. 2428/2003.
The
said question arises in the following circumstances.
The respondent
herein filed the suit No. 156/169 of 2001 in the Court of Small Cause Bombay
against the appellant for eviction of the appellant inter alia on the ground
that the provisions of Maharashtra Rent Control Act, 1999 had no application in
relation to the premises in question. An affidavit was filed by the respondent
herein purporting to be his examination-in-chief to be taken on evidence in the
suit.
An
application was filed by the appellant herein objecting to the said affidavit
being accepted inter alia on the ground that the decree which may be passed in
suit being an appealable one, Order 18 Rule 5 of the Code of Civil Procedure
will be applicable. By reason of an order dated 17th February, 2003, the learned Trial Judge rejected the said
application of the appellant holding:
"The
Court had already acted upon as per the provisions of Order 18 Rule 4 of C.P.C.
(amended) which authorizes the court to receive the evidence on affidavit in
any matter which includes the appealable order. In the given circumstances the
affidavit need not be returned back to plaintiffs and be asked to give oral
evidence in the matter.
Besides
the fact that aspect as above and the legal position observed by me. I have
also come across one matter of this court only wherein on same facts the matter
had been taken to the Hon'ble High Court and the Hon'ble High Court had
directed this court to accept the evidence on affidavit. I have also come
across certain observations made by the Small Causes Court supporting the view
that it is legal to accept evidence on affidavit in any matter. Hence I do not
think I should discuss all the authorities cited by defendants advocate. Hence
I proceed to pass following order.
Order
Application stands rejected. Matter is adjourned to 4.3.2002 at 10.30 a.m. for cross examination of Plaintiffs." Being
aggrieved the appellant preferred a writ petition thereagainst which was
dismissed by reason of the impugned order holding :
"Heard.
The only grievance made in this Petition is that the Court below has allowed
the Plaintiff to receive evidence on affidavit.
Learned
Counsel contends that, that will not be permissible in view of the provisions
contained in Order XVIII Rule 5 of the Code of Civil Procedure. I am not
inclined to interfere with the discretionary order passed by the Court below.
Besides, I find force in the objection taken on behalf of the Respondents that
the issue is already concluded and answered by the decision of this Court dated
20th March, 2003 in Writ Petition No.708 of 2003. To my mind, no prejudice will
be caused to the Petitioner, if the view as taken by the Trial Court was to be
upheld because the Petitioner being Defendant would get opportunity to
cross-examine the Plaintiff and Plaintiff's witnesses.
Hence,
no reason to interfere.
Rejected."
The appellant is in appeal before us aggrieved thereby.
Mr. Rajan
Narain, the learned counsel appearing on behalf of the appellant would submit
that Order 18 Rule 4 and Order 18 Rule 5 of the Code of Civil Procedure should
be read harmoniously and so read, it must be held that Order 18 Rule 4 will
have no application in the appealable cases; and as logical corollary thereof
the court must examine all the witnesses in court. In support of the said
contention, strong reliance Rajasthan 74].
Mr. Nariman,
the learned senior counsel appearing on behalf of the respondent, on the other
hand, would submit that a bare perusal of the provisions contained in Order 18
Rule 4 of the Code of Civil Procedure would show that an affidavit
incorporating examination-in-Chief of a witness has to be filed in every case
and only in the event the said witness is required to be cross-examined, he
would be produced in court.
The
learned counsel would urge that the Code of Civil Procedure Amendment Act, 1976
was enacted with a view to do away with the unnecessary wastage of time which
may be taken for examination of a witness.
Mr. Nariman
would urge that Order 18 Rule 5 should be read with Order 18 Rule 13 so as to
decipher the difference between the cases where an appeal is allowed and where
appeal is not allowed. Order 18 Rule 5, the learned counsel would submit,
merely lays down the procedure for taking the evidence of the witness. In
support of the said Medical Representatives Association India (FMRAI) and
Others [AIR 2003 Bombay 371].
Order
18 Rule 4 as it originally stood reads as under:
"4
WITNESSES TO BE EXAMINED IN
OPEN COURT.
The
Evidence of the witnesses in attendance shall be taken orally in open Court in
the presence and under the personal direction and superintendence of the
judge." Order 18 Rules 4 (1), (2), and (3) as they now stand read as
under:
"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 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.
(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 it thinks fit;
(3)
"The Court or the Commissioner, as the case may be, shall record evidence
either in writing or mechanically in the presence of the Judge or of the
Commissioner, as the case may be, and where such evidence is recorded by the
Commissioner he shall return such evidence together with his report in writing
signed by him to the Court appointing him and the evidence taken under it shall
form part of the record of the suit." The other sub-rules of Rule 4 of
Order 18 provide for other and further procedures as regard examination of
witness.
Rule 5
refers to the evidence which is required to be taken in cases where the appeal
is allowed in contra-distinction with the cases where appeal is not allowed as
envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5,
therefore, envisages a situation where the Court is required to take down an
evidence in the manner laid down therein which would mean that where
cross-examination or re-examination of the witness is to take place in the
court.
The
examination of a witness would include evidence-in-chief, cross-examination or
re-examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended
rule provided for the manner in which 'evidence' is to be taken. Such
examination-in-chief of a witness in every case shall be on affidavit.
The
aforementioned provision has been made to curtail the time taken by the Court
in examining a witness in chief. Sub-Rule (2) of Rule 4 of Order 18 of Code of
Civil Procedure provides for cross- examination and re-examination of a witness
which shall be taken by the court or the Commissioner appointed by it.
We may
notice that Rule 4 of Order 18 was amended with effect from 1.7.2002
specifically provided thereunder that the examination-in-chief in every case
shall be on affidavit. Rule 5 of Order 18 had been incorporated even prior to
the said amendment.
Rule 4
of Order 18 does not make any distinction between an appealable and non-appealable
cases so far mode of recording evidence is concerned. Such a difference is to
be found only in Rules 5 and 13 of Order 18 of the Code.
It,
therefore, appears that whereas under the unamended rule, the entire evidence
was required to be adduced in Court, now the examination in chief of a witness
including the party to a suit is to be tendered on affidavit. The expressions
"in every case" are significant. What, thus, remains, viz.
cross-examination or re-examination in the appellable cases will have to be
considered in the manner laid down in the Rules, subject to the other sub-rules
of Rule 4.
Rule 5
of Order 18 speaks of the other formalities which are required to be complied
with. In the cases, however, where an appeal is not allowed, the procedures
laid down in Rule 5 are not required to be followed.
In a
situation of this nature, the doctrine of suppression of mischief rule as
adumbrated in Heydon's case [3 Co Rep 7a, 76 ER 637] shall apply. Such an
amendment was made by the Parliament consciously and, thus, full effect thereto
must be given.
In Halsbury's
Laws of England, Volume 44(1), fourth reissue, para 1474, pp 906-07, it is stated
:
"Parliament
intends that an enactment shall remedy a particular mischief and it is
therefore presumed that Parliament intends that the court, when considering, in
relation to the facts of the instant case, which of the opposing constructions
of the enactment corresponds to its legal meaning, should find a construction
which applies the remedy provided by it in such a way as to suppress that
mischief. The doctrine originates in Heydon's case where the Barons of the
Exchequer resolved that for the sure and true interpretation of all statutes in
general (be they penal or beneficial, restrictive or enlarging of the common
law), four things are to be discerned and considered :
(1) what
was the common law before the making of the Act;
(2) what
was the mischief and defect for which the common law did not provide;
(3) what
remedy Parliament has resolved and appointed to cure the disease of the
commonwealth; and
(4) the
true reason of the remedy, and then the office of all the judges is always to
make such construction as shall :
(a) suppress
the mischief and advance the remedy; and
(b) suppress
subtle inventions and evasions for the continuance of the mischief pro privato commodo
(for private benefit); and
(c) add
force and life to the cure and remedy according to the true intent of the
makers of the Act pro publico (for the public good)."
Heydon's
Rule has been applied by this Court in a large number of cases in order to
suppress the mischief which was intended to be remedied as against the literal
rule which could have otherwise covered the field. [See for example, Smt. PEK Kalliani
Amma and Others vs. K. Devi and Others, [AIR 1996 SC 1963; Bengal Immunity Co.
Ltd. vs. State of Bihar and Others, AIR 1955 SC 661; and Goodyear India Ltd.
vs. State of Haryana and Another, AIR 1990 SC 781].
It is
now well-settled that for the purpose of interpretation of statute the same has
to be in its entirety.
Furthermore,
in a case of this nature, principles of purposive Union of India (2003) 7 SCC
589).
this
Court observed:
"The
primary principle of interpretation is that a Constitutional or statutory provision
should be construed "according to the intent of they that made it"
(Coke). Normally, such intent is gathered from the language of the provision.
If the
language or the phraseology employed by the legislation is precise and plain
and thus by itself proclaims the legislative intent in unequivocal terms, the
same must be given effect to, regardless of the consequences that may follow.
But if the words used in the provision are imprecise, protean or evocative or
can reasonably bear meanings more than one, the rule of strict grammatical
construction ceases to be a sure guide to reach at the real legislative intent.
In such a case, in order to ascertain the true meaning of the terms and phrases
employed, it is legitimate for the Court to go beyond the arid literal confines
of the provision and to call in aid other well- recognised rules of
construction, such as its legislative history, the basic scheme and framework
of the statute as a whole, each portion throwing light, on the rest, the
purpose of the legislation, the object sought to be achieved, and the
consequences that may flow from the adoption of one in preference to the other
possible interpretation.
3 SCC
609], this Court held:
"...But,
if the words are ambiguous, uncertain or any doubt arises as to the terms
employed, we deem it as our paramount duty to put upon the language of the
legislature rational meaning. We then examine every word, every section and
every provision. We examine the Act as a whole. We examine the necessity which
gave rise to the Act. We look at the mischiefs which the legislature intended
to redress. We look at the whole situation and not just one-to-one relation. We
will not consider any provision out of the framework of the statute. We will
not view the provisions as abstract principles separated from the motive force
behind. We will consider the provisions in the circumstances to which they owe
their origin. We will consider the provisions to ensure coherence and
consistency within the law as a whole and to avoid undesirable
consequences." SC 183 : (2001) 7 SCC 358], this Court stated:
"The
legislation is primarily directed to the problems before the legislature based
on information derived from past and present experience. It may also be
designed by use of general words to cover similar problems arising in future.
But, from the very nature of things, it is impossible to anticipate fully in
the varied situations arising in future in which the application of the
legislation in hand may be called for and words chosen to communicate such
indefinite referents are bound to be in many cases, lacking in clarity and
precision and thus giving rise to controversial questions of construction. The
process of construction combines both literal and purposive approaches.
In
other words, the legislative intention i.e. the true or legal meaning of an
enactment is derived by considering the meaning of the words used in the
enactment in the light of any discernible purpose or object which comprehends
the mischief and its remedy to which the enactment is directed." this
Court observed:
"an
act has to be read as a whole, the different provisions have to be harmonized
and the effect has to be given to all of them." In Laxman Das (supra) the
Rajasthan High Court held:
"Therefore,
in view of the above, the words "in every case", contained in R.4 of
O.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 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 O.18, R. 4; or
to record the substance thereof by the Court itself as provided under O.18,
R.13. But in cases where orders would be appealable, the evidence is to be
recorded strictly as provided under O.18, R.5." On the other hand, in
F.D.C. Ltd. (supra) it has been held:
"The
harmonious reading of Rr. 4 and 5 of O.XVIII would reveal that while in each
and every case of recording of evidence, the examination-in-chief is to be
permitted in the form of affidavit and while such evidence in the form of
affidavit being taken on record, the procedure described under R.5 is to be
followed in the appealable cases. In non-appealable cases, the affidavit can be
taken on record by taking resort to the provisions of law contained in R.13 of
O.XVIII. In other words, mere production of the affidavit by the witness will
empower the court to take such affidavit on record as forming part of the
evidence by recording the memorandum in respect of production of such affidavit
taking resort to R.13 of O.XVIII in all cases except in the appealable cases
wherein it will be necessary for the Court to record evidence of production of
the affidavit in respect of examination-in- chief by asking the deponent to
produce such affidavit in accordance with R.5 of O.XVIII.
Undoubtedly,
in both the cases, for the purpose of cross-examination, the Court has to
follow the procedure prescribed under sub-rule (2) of R. 4 read with R.13 in
case of non-appealable cases and the procedure prescribed under sub- rule (2)
of R. 4 read with R.5 in appealable cases.
In other
words, in the appealable cases though the examination-in-chief of a witness is
permissible to be produced in the form of affidavit, such affidavit cannot be
ordered to form part of the evidence unless the deponent thereof enters the
witness-box and confirms that the contents of the affidavit are as per his say
and the affidavit is under his signature and this statement being made on oath
to be recorded by following the procedure prescribed under R.5.
In
non-appealable cases, however, the affidavit in relation to
examination-in-chief of a witness can be taken on record as forming part of the
evidence by recording memorandum of production of such affidavit by taking
resort to R.13 of O.XVIII. The cross-examination of such deponent in case of appealable
cases, will have to be recorded by complying the provisions of R.5, where as in
case of non-appealable cases the Court would be empowered to exercise its power
under R.13" We agree with the view of the Bombay High Court.
The
matter may be considered from another angle. Presence of a party during
examination-in-chief is not imperative. If any objection is taken to any
statement made in the affidavit, as for example, that a statement has been made
beyond the pleadings, such an objection can always be taken before the Court in
writing and in any event, the attention of the witness can always be drawn
while cross-examination him. The defendant would not be prejudiced in any
manner whatsoever the examination-in-chief is taken on an affidavit and in the
event, he desires to cross-examine the said witness he would be permitted to do
so in the open court. There may be cases where a party may not feel the
necessity of cross-examining a witness, examined on behalf of the other side.
The time of the court would not be wasted in examining such witness in open
court.
Applying
the aforementioned principles of interpretation of statute, we have no doubt in
our mind that Order 18 Rules 4 and 5 are required to be harmoniously construed.
Both the provisions are required to be given effect to and as Order 18, Rule 5
cannot be read as an exception to Order 18 Rule 4.
For
the reasons aforementioned, there is no merit in this appeal, which is
dismissed accordingly. However, there shall be no order as to costs.
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