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Shamrao Vishnu Kunjir v. Suresh Vishnu Kunjir And Others
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner is the original plaintiff in Regular Civil Suit No. 166 of 2001 filed in the Court of the Civil Judge, Junior Division, Saswad, seeking partition of properties alleged to be ancestral and/or purchased from the nucleus of the joint family properties. Respondent No. 1 filed a written statement-cum-reply to an application for temporary injunction on 8 November 2004; respondent Nos. 3 to 5 adopted that written statement. There were inter se disputes between respondents about the procedure for filing written statements which the trial Court addressed by an order dated 6 March 2004.
On 12 February 2004 respondent Nos. 3, 4 and 5 filed three separate affidavits containing similar contents (referred to at Exh. 78). Evidence in the suit, including examination and cross-examination and oral and documentary evidence, had been partly recorded. On 29 September 2004 the petitioner moved an application in the trial Court seeking permission to cross-examine respondent Nos. 3 to 5. Respondent Nos. 3 to 5 opposed the application. By the impugned order dated 1 October 2004 the trial Judge rejected the petitioner's application to cross-examine, on the basis that affidavits were not in lieu of examination-in-chief and by reference to Order 19, Rule 2 of the Code of Civil Procedure. That order is challenged in the present petition.
Legal Issues Presented
- Whether, once affidavits are filed as examination-in-chief under the substituted Order 18, Rule 4 of the Code of Civil Procedure, the party opposing such affidavits is entitled to cross-examine the deponents.
- What procedure must be followed for recording examination-in-chief on affidavit after the amendments to Order 18 (including whether affidavits drafted without prior examination of witnesses in counsel's presence satisfy the statutory requirements).
- Whether the trial Court's rejection of an application for cross-examination (by its order dated 1 October 2004) was legally sustainable in light of the amended provisions of Order 18, Rule 4 and related rules.
Arguments of the Parties
Petitioner's Arguments
- The petitioner's position, as set out in the opinion, is that once affidavits are filed by way of examination-in-chief, the law permits the opposing party to cross-examine the witnesses whose examination-in-chief was by affidavit.
Respondents' Arguments
- Respondent Nos. 3 to 5 opposed the petitioner's application for cross-examination. It was contended (before the trial Court) that affidavits are not in lieu of examination-in-chief in the suit; the trial Court also made reference to Order 19, Rule 2 of the Code of Civil Procedure in support of its view.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Salem Advocates Bar Association v. Union of India, (2003) 1 SCC 49 ; AIR 2003 SC 189 | To explain the object of amending Order 18, Rule 4 — namely to expedite recording of evidence and reduce trial delays by permitting examination-in-chief on affidavit. | The Court relied on the Apex Court's consideration of the amendment to demonstrate that the legislative purpose was to cut down disposal time, not to dispense with the procedure of recording evidence; this supported the view that affidavits must reflect properly recorded examination-in-chief. |
| A.K.K. Nambiar v. Union of India, (1969) 3 SCC 864 : AIR 1970 SC 652 | Principle that verification clauses in affidavits must clearly specify which statements are made on the deponent's own knowledge and that affidavits not properly verified can be rejected. | The Court applied this authority to require that affidavits filed as examination-in-chief comply with verification requirements (Order 19, Rule 3) and to support the proposition that improperly prepared or unverified affidavits can be rejected. |
Court's Reasoning and Analysis
The Court proceeded in the following logical steps, based strictly on the material in the opinion:
- Preliminary procedural points: Although respondent Nos. 2 to 13 were parties, the order under challenge arises from the say (written statement) filed by respondent No. 1; consequently notice to the other respondents was dispensed with for the purpose of hearing the petition.
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Statutory framework: The Court examined the evolution of Order 18, Rule 4 of the Code of Civil Procedure through the Amendment Acts of 1999 and 2000. It set out the substituted text of Rule 4 (as enacted by the 1999 Act and as further amended in 2000), noting that:
- Examination-in-chief is to be given by affidavit with copies supplied to the opposite party;
- Cross-examination and re-examination of a witness whose examination-in-chief is by affidavit are to be taken orally by the Court or by a Commissioner appointed by it (subject to specified qualifications and discretionary directions); and
- Order 19-Rules and Order XXVI (Rule 4-A) permit recording on commission in appropriate cases.
- Purpose of amendment: Relying on the Apex Court's consideration in Salem Advocates Bar Association, the Court observed that the clear purpose of the amendment was to expedite trials by dispensing with the lengthy procedure of the Court recording every witness's examination-in-chief, thereby reducing delay and docket explosion.
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Interpretation and required procedure: The Court rejected the notion that the amendment authorized parties to file affidavits without any proper antecedent procedure. It held that:
- The amendment shifts the place of recording the examination-in-chief (from the Court to the advocates' chambers or to a Commissioner), but it does not dispense with the procedure for recording evidence;
- Affidavits filed as examination-in-chief must be a product of proper recording — i.e., the advocate(s) should examine the witness, have the witness's statement recorded in writing or by taking it down (consistent with Order 18, Rule 5 modes such as written notes, typewriter dictation or mechanical recording), and then transcribe/put that recorded statement onto an affidavit;
- The affidavit must comply with verification requirements (Order 19, Rule 3) and should indicate which parts are on the witness's own knowledge; affidavits that set out hearsay or argumentative matter unnecessarily may attract costs and may be rejected if not properly verified.
- Application to the present case: Given the substituted Rule 4, the Court found that once examination-in-chief is legitimately filed by affidavit, the opposing party is entitled to cross-examine. The language of the rule compels the Court to permit cross-examination once affidavits of examination-in-chief have been furnished.
- Relief granted: On the facts of the case, the Court set aside the impugned order dated 1 October 2004 (which had refused permission for cross-examination) and remanded the matter to the trial Court to permit the petitioners to cross-examine the witnesses whose affidavits had been filed.
- Directions and practical measures: The Court clarified that the procedural standards described are to be followed in Courts and Tribunals over which it exercises supervisory jurisdiction, with effect from 1 August 2005. It directed the Registrar General to circulate this order to all District Courts and relevant Tribunals. It also provided specific directions as to the next appearance date and for the trial Court to fix a date for cross-examination and proceed to dispose of the suit at the earliest.
Holding and Implications
Core Ruling: The impugned order dated 1st October, 2004 rejecting the petitioner's application for cross-examination is set aside, and the matter is remanded to the trial Court with directions to permit the petitioners to cross-examine the witnesses whose affidavits have been filed.
Implications for the Parties
- The petitioners are entitled to cross-examine the witnesses who filed affidavits as their examination-in-chief.
- The matter is remanded to the trial Court to fix dates for cross-examination and to proceed to dispose of the suit expeditiously; parties were directed to appear before the trial Court on 16 June 2005 at 11:00 a.m.
- There shall be no order as to costs in respect of this petition.
Broader Procedural and Supervisory Implications
- The Court clarified that the legislative amendment requiring examination-in-chief to be on affidavit does not permit bypassing the procedural safeguards for recording evidence: affidavits must be based on properly recorded statements made by the witness (recorded by the advocate or a Commissioner as permitted) and must comply with verification requirements (Order 19, Rule 3).
- The procedural standard outlined in the judgment is to be followed in Courts and Tribunals under the supervisory jurisdiction of this Court from 1 August 2005.
- The Registrar General was directed to circulate the order to all District Courts and applicable Tribunals to ensure widespread compliance with the clarified procedure.
Note: This summary strictly reflects the contents of the provided opinion and does not add any information beyond what appears in that text.
1. Rule. By consent heard forthwith.
2. Though the respondent Nos. 2 to 13 are parties, the order arises out of the say filed by defendant No. 1 i.e respondent No. 1 who is represented before this Court. Notice on the other respondents, therefore, dispensed with.
3. The petitioner, is the original plaintiff in the pending suit being Regular Civil Suit No. 166 of 2001 filed in the Court of learned Civil Judge, Junior Division, Saswad. The reliefs sought for is that as the properties are ancestral and/or purchased out of the nucleus of the joint family properties they are liable to be partitioned. The respondent No. 1 filed written statement-cum-reply to the application for temporary injunction on 8th November, 2004 wherein defence is set out. The respondent Nos. 3 to 5 have adopted the written statement filed by the respondent No. 1. There are some inter se disputes as to the procedure of filing written statement between respondent Nos. 2 and 4 on the one hand and respondent Nos. 3 and 5 on the other. The controversy to that extent was resolved by an order dated 6th March, 2004 passed by the trial Court. It is the case of the petitioners that on 12th February, 2004 the respondent Nos. 3, 4 and 5 filed 3 separate affidavits incorporating similar contents as taken by them in the application made by them at Exh. 78. The defence raised therein are thereafter set out in the pleadings. Evidence by way of Examination and cross-examination including leading of oral and documentary evidence has been partly done.
4. On 29th September, 2004 the petitioner moved an application in the suit seeking permission of the learned trial Judge to cross-examine the respondent Nos. 3 to 5. That came to be opposed by respondent Nos. 3 to 5. The learned Judge by his impugned order dated 1st October, 2004 rejected the application for cross-examination. It was contended that affidavits are not in lieu of examination-in-chief in the suit. The Court made reference to the provisions of Order 19, Rule 2 of the Code of Civil Procedure which was not at all applicable. It is this order which is the subject-matter of the present challenge.
5. At the threshold it may by pointed out that the contesting respondent has been unable to defend the said order. Once the affidavits are filed by way of examination-in-chief, law permits the party who is entitled to cross-examine the witnesses to do so. For that purpose we may now consider the relevant provisions of Order 18 of Civil Procedure Code.
Order 18, Rule 4 before its amendment read 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”.
By the Code of Civil Procedure (Amendment) Act, 1999 the said Rule was sought to be substituted. The relevant portion of which reads as under:—
“4. Recording of evidence by Commissioner — (1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.
(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 orally by a Commissioner to be appointed by the Court from amongst the panel of Commissioners prepared for this purpose on the same day;
Provided that, in the interest of justice and for reasons to be recorded in writing, the Court may direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the Judge”.
The Act of 1999 also provided for addition of another Rule after Rule 18, Rule 19 which reads as under:—
“19. Power to get statements recorded on commission.— Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open Court, direct their statements to be recorded on Commission under Rule 4-A of Order XXVI”.
This rule subsists.
After the Act of 1999, came the amendment by the Amendment Act of 2000 which made further changes in Order 18. Insofar as Rule 4 is concerned, the relevant portion as amended reads as follows:—
“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 (other than the High 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;
Provided further that in a suit tried by the High Court, the evidence shall ordinarily be recorded by the Commissioner unless the Court directs otherwise”.
For discussion we may also reproduce Order XVIII, Rule 5:—
“5. How Evidence shall be taken in appealable cases — In cases in which an appeal is allowed, the evidence of each witness shall be.—
(a) taken down-in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge”.
From consideration of Rule 4 as it stood before the Amendment Act of 1999 as substituted by the Act of 1999 and then by the Act of 2000, it appears that it provides that in all cases examination-in-chief of witnesses shall be on affidavit. Rule 5, however, continues to operate and if read with Rule 4, it may appear that Rule 4 only applies to cases where no appeal lies. Rule 19, however, permits the Court to record evidence on commission under Rule 4-A of Order XXVI. In other words the procedure for recording evidence in Court by the Judge can be dispensed with in all cases. We are, however, considering the issue of recording evidence on affidavit to consider the legality of the order.
6. The question which, therefore, emerges is how will this evidence be recorded on affidavit. Law, it is said, gains by experience. Though a short period of time has elapsed, experience gathered by Courts in recording of evidence on affidavit indicates that affidavits are drafted in Lawyer's Chambers without the witness being examined by the Lawyer and a true transcript of the evidence being set out in the affidavit. Cases are coming up before the Courts where witnesses are unable either to depose to the facts as set out in the affidavit or even display any knowledge on what is set out in the affidavit. The result, therefore, is that on many an occasion evidence of such witnesses has to be discarded and/or its evidentiary value is put in doubt. Was it the purpose and intent of Parliament that by doing away with the examination-in-chief in the Court and replacing it by evidence on affidavit, meant that the affidavit has to be prepared without examining the witnesses and recording his statement and then transcribing the relevant evidence on affidavit on oath.
7. Order 18, Rule 4 as it stood before its substitution by Act of 1999 and 2001, provided that the oral evidence of the witness had to be recorded in the presence of the Judge. By the amendment it is now to be recorded on affidavit. Earlier it had to be recorded in the manner set out in Rule 5, which was, to take it down, in the language of the Court in writing or in the presence and under the personal direction and superintendence of the Judge or from the dictation of the Judge directly on a typewriter or if the Judge for reasons recorded, directs to be recorded by a mechanism in the presence of the Judge. The purpose and object of the Amendment Acts have been considered by the Apex Court in Salem Advocates Bar Association v. Union of India, (2003) 1 SCC 49 : AIR 2003 SC 189.The object of amending Order 18, Rule 4 is to subserve the larger purpose of cutting down in the disposal time of recording evidence, thereby reducing the period of disposal of the cases by dispensing with the lengthy procedure of the Court recording evidence of every witness produced before it or summoned to appear before it. The earlier procedure resulted in the trial being inordinately delayed and was one of the main reasons for the docket explosion in the Courts. The amendment seeks to obviate the same by permitting examination to be on affidavit instead of the examination-in-chief being recorded by the Court.
8. The objective of speedy disposal of trial of the case by allowing examination-in-chief to be recorded on affidavit does not mean that the procedure of recording of evidence of the witness has to be by-passed or dispensed with, by filing the affidavit without examining the witnesses as is the popular notion. All that has happened is that instead of recording the evidence before the Court, the duty is now placed on the legal profession, thereby meaning Advocates appearing for the parties to follow the same procedure in their Chambers meaning thereby that they have to personally examine the witness and get his statement recorded in his presence by one of the modes earlier set out under Order 18, Rule 5 and then transcribe the same on an affidavit which is to be filed in the Court. Dispensation of oral evidence, by way of examination-in-chief therefore, is not dispensation of the procedure for recording evidence. The place of recording evidence has only changed. The procedure for recording evidence even at the stage of examination-in-chief remains substantially the same. Even before the Amendment Act of 1999 and 2000 it was open to the Court, under the provisions of Order 19-R1, 2 to permit evidence to be recorded on affidavit. This was discretionary. It is now made mandatory under Order 18, Rule 4 of Civil Procedure Code.
Having considered the object and purpose for which the amendment has been brought about it would be clear that an affidavit cannot be filed by way of examination-in-chief where the evidence of the witness has not been recorded by the Lawyer or Lawyers representing the parties and then transcribing the recorded evidence on an affidavit. Any affidavit has to be verified in terms of Order 19, Rule 3. Under the provisions of Order 18, Rule 5 the statement of the witness has to be recorded in writing or by taking it down on typewriter or by any mechanical process including recording it on a tape or on computer or any other mode that may be permissible for the purpose of recording evidence. It is only after such recording the evidence recorded has to be transcribed and put on affidavit. An affidavit not following this procedure is not the affidavit contemplated and will have to be rejected. It is no doubt true that there is no express provision in the Civil Procedure Code, pursuant to the substitution of Order 18, Rule 4 which specifically sets out the procedure as now held. However, though not specifically provided it can be inferred bearing in mind the intent and purpose for which the amendment has been brought about and the provisions of the Civil Procedure Code under Order 19, Rule 3, the affidavit had to be confined to such facts as the deponent is able of his own knowledge to prove under Order 19, Rule 3, the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, etc., has to be paid by the party filing the same. It is settled law that the verification clause in the affidavit must clearly specify which statements are made on knowledge. Affidavits not properly verified can be rejected. See (1969) 3 SCC 864 : AIR 1970 SC 652, A.K.K Nambiar v. Union of India The purpose apart from speeding the trial is to complete the process of examination-in-chief of witnesses by the Lawyer or Lawyers as the case may be. Even before the amendment, the Code provided for the manner in which an affidavit has to be recorded and verified as set out earlier. In my opinion, therefore, all affidavits of witnesses by way of examination-in-chief under Order 18, Rule 4 must be prepared, affirmed and filed in the manner discussed in this judgment and the affidavit may also contain a statement by the witnesses that the affidavit has been prepared based on the evidence deposed by him, before the person who has recorded his evidence. In that event the name shall be disclosed. Needless to say such recording of evidence can only be by a Lawyer or Commissioner appointed under the Code of Civil Procedure and to ensure protection both to the Lawyer and the witnesses the signed or initialled transcript must be maintained till the deposition is complete. This procedure is part of the trial of a suit.
9. It is made clear that this procedure is to be followed in Courts and Tribunals over which this Court exercises its supervisory jurisdiction and will be followed from 1st August, 2005.
10. Considering the facts of the present case and considering the substituted Order 18, Rule 4 once the affidavits are filed by way of examination- in-chief it was open to the plaintiff to seek cross-examination. After cross- examination is sought considering the imperative language of the Order the Court was bound to permit cross-examination. Considering the above the impugned order dated 1st October, 2004 is set aside. The matter is remanded back to the trial Court to permit the petitioners to cross-examine the witnesses whose affidavits have been filed.
11. Rule made partly absolute accordingly. There shall be, however, no order as to costs.
12. The Registrar General of this Court to circulate a copy of this order to all the District Courts for circulation to all Courts and to Tribunals over which this Court exercises supervisory jurisdiction.
13. Parties to appear before the trial Court on 16th June, 2005 at 11.00 a.m The trial Court to proceed in the matter by fixing a date for cross-examination and thereafter dispose of the suit at the earliest.
Order accordingly.
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