: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1900 OF 2007 CHAMBER SUMMONS NO.1900 OF 2007 CHAMBER SUMMONS NO.1900 OF 2007 IN IN IN SUIT NO.223 OF 1989 SUIT NO.223 OF 1989 SUIT NO.223 OF 1989 The Board of Trustees of the Port of Bombay .. Plaintiffs. Versus Cummins India Limited .. Defendants. Mr.U.J.Makhija i/b.Motiwalla & Co. for plaintiffs. Mr.Vachan Bodke i/b.Chitnis Vaithy & Co. for defendant No.1. Mr.I.A.Bootwalla i/b.Bootwalla & Co. for defendant No.2. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 7th August, 2008. DATE : 7th August, 2008. DATE : 7th August, 2008. P.C. :- P.C. :- P.C. :- 1. The defendant No.1 has taken out the chamber summons with a prayer that affidavit in examination-in-chief of Mr.Sanjay Sawant, Asstt. Docks Manager filed on behalf of the plaintiffs be rejected. 2. Affidavit-in-reply is not filed by the plaintiffs to the same. 3. Heard learned Advocates appearing on behalf of both the sides. : 2 : 4. The plaintiffs had instituted the suit and to prove their case have tendered affidavit in lieu of oral evidence of their witness Mr.Sanjay Sawant being affidavit dated 5.9.2007. After the said affidavit was tendered, learned Advocate for defendant No.1 had tendered this chamber summons and, thereafter, it was ordered by my learned Predecessor that the chamber summons should be heard alonwith final arguments and it is in these circumstances, the cross-examination of the witness Mr.Sanjay Sawant was conducted. 5. Today, when the matter was taken up for arguments, it was submitted on behalf of the learned Advocate for the defendant No.1 that the chamber summons should be heard first. Learned Advocate Mr.Makhija appearing for plaintiffs also submitted that if the court rejects the affidavit of Mr.Sanjay Sawant, then, the plaintiffs may have to attend to the matter in accordance with the law and, therefore, consensus was arrived at that the chamber summons should be heard first before final arguments. It is in these circumstances, this chamber summons is came to be heard and is being decided accordingly. 6. Learned Advocate for defendant No.1 drew my : 3 : attention to the authority letter dated 9.11.2005 purported to have been executed by Mr.S.S.Shiralkar in favour of Mr.Sanjay Sawant whereby Mr.Sanjay Sawant has been permitted to affirm/declare plaint, written statement, petition, affidavits, execution application etc. in the court. Learned Advocate for defendant No.1 submitted that this authority letter nowhere empowers Mr.Sanjay Sawant to give evidence and, therefore, the evidence affidavit given by Mr.Sanjay Sawant should not be considered as an evidence affidavit. 7. Learned Advocate Mr.Makhija submitted that in view of the provisions of Order 18 Rule 4 of C.P.C., when a party wants to examine its witness, the said party have affidavit affirmed that of the witness and that affidavit is called as "affidavit in lieu of oral evidence" and, therefore, the term "affidavits" used in the letter of authority will have to be equated with evidence affidavit which is filed by the plaintiffs through Mr.Sanjay Sawant. Learned Advocate Mr.Makhija submitted that considering the provisions of Order 18 Rule 4 of the Code of Civil Procedure, the evidence affidavit is required to be treated as properly having been filed on the strength of the authority letter dated 9.11.2005. : 4 : 8. I have considered the text of the letter of authority which uses the term "affidavits". The provisions of Order 18 Rule 4 of C.P.C. came to be newly inserted in the C.P.C. so as to see that a witness instead of standing in the court and giving examination in chief orally can depose by way of stating whatever he wants to state by way of examination in chief in the form of an affidavit and that is referred to as the evidence affidavit in lieu of oral evidence. 9. In my view, in the wake of specific provisions of Order 18 Rule 4 of C.P.C. the word "affidavits" appearing in authority letter dated 9.11.2005 will have to be treated as having confirmed upon Mr.Sanjay Sawant to affirm affidavits as are necessary for the purposes of attending to the matter on behalf of the plaintiffs and, therefore, the evidence affidavit as is commonly called i.e. an affidavit executed by Mr.Sanjay Sawant under question is within the parameters of the authority conferred on him. 10. Even otherwise, it is required to be noted that Mr.Sanjay Sawant is an employee of the plaintiffs and this : 5 : designation of his will otherwise permit him to enter into the box on behalf of the plaintiffs is must and give evidence. 11. In my view, the letter of authority dated 9.11.2005 will have to be liberally construed and interpreted and while doing so, the evidence affidavit given by Mr.Sanjay Sawant will have to be treated as validly filed. 12. For the reasons mentioned aforesaid, the stand taken by defendant No.1 will have to be rejected and hence chamber summons will have to be dismissed. In the peculiar facts and circumstances, I am inclined to direct the defendant No.1 to pay to the plaintiffs costs, quantified at Rs.2,000/-. Hence the order :- O R D E R O R D E R O R D E R i) Chamber summons is dismissed. ii) Defendant No.1 to pay to the plaintiffs costs, quantified at Rs.2,000/- towards this chamber summons. : 6 : 13. Suit is now posted for hearing of main arguments on 27.8.2008. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)