Shirish P. Shah vs Arun Popatlal Shah

Karnik D.G., J.—Heard.

Affidavit in lieu of examination in chief was tendered by the Plaintiff and thereupon a Court Commissioner was appointed by the Court for recording of the evidence. The cross-examination of the Plaintiff was recorded by the Court Commissioner and the matter was posted by him for recording evidence of P.W. 2 Plaintiffs next witness. At that stage, Counsel for the Plaintiff requested the Court Commissioner to refer the matter to the Court contending that the affidavit in lieu of examination in chief of P.W. 2 can only be tendered in the Court and not before the Court Commissioner.

Today, learned Counsel for the Plaintiff submitted that the Court Commissioner has no power to take examination in chief of any witness on affidavit and the affidavit must be tendered in the Court and only thereafter the matter can be referred to the Court Commissioner for the cross-examination.

In my view, the submission is without merit. Sub-rule (1) of Rule (4) of Order 18 (as amended by the CPC (Amendment) Act, 2002) states that in every case examination in chief of a witness shall be on affidavit. Law now mandates that examination in chief would not be recorded in person but would be recorded on affidavit. Learned Counsel for the Plaintiff submitted that such recording of examination in chief must be before the Court and cannot be done before the Court Commissioner. This submission overlooks the provisions of Rule 4A of Order 26 of the Code of Civil Procedure. Rule 4A of Order 26, which was introduced in the CPC (Amendment) Act, 1999, begins with a non obstante clause and provides that notwithstanding anything contained in the rules any Court may in the interest of justice or for expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction and the evidence so recorded shall be read in evidence. The fact cannot be ignored that suits which have been instituted in the 8th and 9th decades of the previous century, are still pending in this Court for adjudication. Though position in the District and Civil Courts in the States is slightly better, there also the suits are pending for several years. Considering the present strength of the Judges, it would nigh be impossible to expeditiously hear the suits expeditiously if the task of recording of evidence in every case is also to be performed by the Judge. The courts, therefore, in appropriate cases appoint commission for recording of the evidence in exercise of power conferred on them under Rule 4A of Order 26 of the Code. Once a Court Commissioner is appointed for recording of the evidence the Court Commissioner obviously would be required to record the evidence by way of examination-in-chief on affidavit as mandated by Rule 4 of Order 18 of the Code. Hence, the submission made by the Counsel for the Plaintiff that examination-in-chief of the Plaintiff or his witnesses cannot be recorded by the Court Commissioner on affidavit is overruled. Matter is referred back to the Court Commissioner for proceeding in accordance with law.

Time for recording of the evidence is extended by 12 weeks from today.

Counsel for the parties are directed to intimate this order to the Court Commissioner who shall proceed with the work on such intimation.