Civil Revision No.6081 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6081 of 2003 Date of decision: September 03, 2009 Lajpat Rai …..PETITIONER Versus State of Punjab and others …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr R.K.Singla, Advocate with Mr Rakesh Sharma, Advocate for the petitioner. Mr K.S.Sidhu, Deputy Advocate General, Punjab for respondent Nos. 1 and 3 to 9. Mr Suvir Sehgal, Advocate for respondent No.2. T.P.S.MANN, J. This revision, filed under Article 227 of the Constitution of India, is directed against the order dated 7.11.2003 passed by the trial Court whereby an application filed by the plaintiff/petitioner under Order XVIII Rule 5 of the Code of Civil Procedure for recording the examination-in-chief of defendant/respondent No.2 upon his appearance in the Court instead of tendering the same through an affidavit, was dismissed. In his suit, the plaintiff had claimed Rs.11 lacs as damages. After filing of the written statement by Joginder Pal Singh Puri- Civil Revision No.6081 of 2003 -2- defendant/respondent No.2 and replication by the plaintiff to the same, the issues were settled. It was followed by the plaintiff leading his evidence and closing it on 23.12.2002. Defendant/respondent No.2 then tendered his affidavit by way of his examination-in-chief. The plaintiff objected to the tendering of the affidavit on the ground that it contained vague and irrelevant material, having no bearing on the merits of the case and it was only an attempt on the part of the said defendant to prolong the proceedings. Moreover, under Order XVIII Rule 5 of the Code, the examination-in-chief of a witness should be recorded by the Court directly or under its dictation as the case was appealable. Learned trial Court, while declining the prayer of the plaintiff/petitioner, observed that under the amended Code of Civil Procedure, examination-in-chief of a witness can be given by way of an affidavit. However, the concerned witness has to appear in the Court to prove the same and then the opposite party will have right to cross examine the said witness. The issue now stands settled in Ameer Trading Corporation Ltd . vs. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 that the procedure as laid down by amended Order XVIII Rule 4 of the Code requiring the examination-in-chief of a witness on an affidavit has to be followed in every case and the requirement under Order XVIII Rule 5 of the Code was not an exception to the same. However, in a case, the final decision of which is open to an appeal, the cross examination of such a witness shall have to be recorded by complying with the requirements as contained under Rule 5 thereof. While holding so, the Hon'ble Supreme Court referred to the judgment of Bombay High Court in F.D.C. Ltd. vs. Civil Revision No.6081 of 2003 -3- Federation of Medical Representatives Association India, AIR 2003 Bombay 371 and agreed with the views expressed therein. The relevant observations of the Hon'ble Supreme Court in paras 31 to 33 in the case of Ameer Trading Corporation Ltd. (supra) are as under: “31.On the other hand, in F.D.C. Ltd., it has been held: AIR pp.374-75, paras 708) “The harmonious reading of Rules 4 and 5 of Order 18 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 Rule 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 Rule 13 of Order 18. 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 Rule 13 of Order 18 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 Rule 5 of Order 18. Undoubtedly, in both the cases, for the purpose of cross-examination, the Court has to follow the procedure prescribed under sub-rule (2) of Rule 4 read with Rule 13 in case of non-appealable cases and the procedure prescribed under sub-rule (2) of Rule 4 read with Rule 5 in appealable cases. Civil Revision No.6081 of 2003 -4- 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 is to be recorded by following the procedure prescribed under Rule 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 Rule 13 of Order 18. The cross-examination of such deponent in case of appealable cases will have to be recorded by complying with the provisions of Rule 5, whereas in case of non-appealable cases the Court would be empowered to exercise its power under Rule 13”. 32.We agree with the view of the Bombay High Court. 33.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-examining him. The defendant would not be prejudiced in any manner whatsoever if 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. Civil Revision No.6081 of 2003 -5- 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.” In view of the above, there is no merit in the present revision, which is, accordingly, dismissed. The parties through their counsel shall appear before the learned trial Court on October 05, 2009 for further proceedings in the matter. (T.P.S.MANN) September 03, 2009 JUDGE Pds.