Sagar Singh Yadav vs Sudama Singh Yadav and Others

Sujoy Paul, J.—By invoking jurisdiction of this Court under Article 227 of the Constitution, the petitioner/plaintiff has called in question the legality, validity, correctness and propriety of the order dated 7-8-2013, whereby the Court below has directed the petitioner to depose the statement by way of examination-in-chief in the Court and the affidavit filed under Order 18 Rule 4 of the CPC (CPC) is discarded. The petitioner filed a suit for declaration and permanent injunction. The said suit was registered as Case No. 10-A/2013 before the Fourth Additional District Judge, Bhind. In the proceedings of the said suit, the petitioner filed affidavit of its witness Keral Singh Yadav under Order 18 Rule 4, CPC. Plaintiff also filed his own affidavit under Order 18 Rule 4, CPC. The Court below by examining this affidavit opined that affidavit is running in seven pages. Prima facie affidavit appears to have been prepared by somebody else or by an Advocate. In this view of the matter, the Court below opined that in the interest of justice the plaintiff be directed to enter the witness box and his statement will be recorded in the Court. Aggrieved by this order, the present petition is filed.

Shri Rohit Jagwani, learned Counsel for the petitioner submits that after the amendment in the CPC, it is obligatory on the part of the Court below to record the statement of the witnesses by way of accepting affidavits under Order 18 Rule 4, CPC and Court below has erred in rejecting the same.

Prayer is opposed by Shri D.D. Bansal, learned Counsel for the respondent No. 1. Shri Bansal relied on Para. 18 of the judgment, reported in Salem Advocate Bar Association Vs. Union of India (UOI), . He further submits that there is no legal error in the order passed by the Court below and, therefore, no interference is required.

I have bestowed my anxious consideration on the rival contentions.

Before dealing with the contentions, it is apt to quote the relevant provisions which are relevant in this matter.

Order 16 Rule 1 and Rule 1-A of CPC read as under:--

List of witnesses and summons to witnesses.--(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).

1-A. Production of witnesses without summons.--Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.

Order 18 Rule 4(1) of CPC reads as under:--

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.

Interestingly, in Salem Advocate Bar Association (supra), the Apex Court has dealt with this aspect. In Para. 17, the Apex Court opened that reading the provisions of Orders 16 and 18, CPC together, it is clear that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule 1-A, CPC. It is opined that as per Order 16 Rule 1-A, if any party to a suit without applying for summoning under Rule 1 brings any witness to give evidence, in that case, examination-in-chief must be recorded in the form of an affidavit and it not to be recorded in the Court. The said portion reads its under:--

Reading the provisions of Order 16 and Order 18 together, it 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 Para. 18 of the same judgment, the Apex Court dealt with the situation whether summons have been issued under Order 16 Rule 1 and in that case opined that the stringent provision of Order 18 Rule 4 may not apply. In other words, it was held that where summons are issued, the Court may give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to remain present in the Court for examination. The relevant portion reads 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.

(Emphasis supplied)

In the present case, admittedly the plaintiff filed his own affidavit and intended to appear as a witness on his own. No summons were issued to the petitioner or his witnesses under Order 16 Rule 1, CPC. In this factual backdrop, in the considered opinion of this Court, Para. 17 of the judgment of Salem Advocate Bar Association (supra) will apply. As per the aforesaid, it is clear that the conjoint reading of Order 16 Rule 1-A and Order 18 Rule 4(1), CPC makes it mandatory for the Court below to record examination-in-chief in the form of an affidavit and it need not be recorded in the shape of examination-in-chief by directing the witness to enter the witness box. Thus, as per Para. 17 of the said judgment, in my opinion, the Court below has erred in discarding the affidavit and directing the plaintiff to enter the witness box to depose his statement. The order of the Court below runs contrary to the mandatory provision as per Order 16 Rule 1-A read with Order 18 Rule 4(1) of CPC. It also runs contrary to the judgment of Supreme Court in this regard.

The contention of Shri Bansal based on Para. 18 of the judgment needs rejection. At the costs of repetition, it is clear that discretion of the Court to record evidence by way of affidavit or by way of examination-in-chief is limited to the cases where summons have been issued under Order 16 Rule 1, CPC. In the present case, no summons were issued and plaintiff and witnesses appeared on their own and intended to file affidavit.

On the basis of aforesaid analysis, the Court below has clearly erred in passing the order dated 7-8-2013 rejecting the affidavit of the petitioner. Resultantly, the said order is set aside. The Court below is directed to accept the said affidavit of the petitioner and proceed therefrom in accordance with law. Petition is allowed to the extent indicated above. No costs.