SAO No.24 of 2005 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** SAO No.24 of 2005 DATE OF DECISION: 30.01.2009 **** M/s Shanker Rice & General Mills, Baghapurana, District Moga. . . . . Appellant VS. Jasvir Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Narender Kumar, Advocate for Mr.B.S. Bhalla, Advocate for the appellant. Ms.J.S. Brar, Advocate for the respondent. **** RAKESH KUMAR JAIN J.(ORAL) The defendant is in second appeal. Plaintiff-respondent No.1 filed a suit for permanent injunction. It was dismissed by the Civil Judge (Jr. Division), Moga vide his judgment and decree dated 11.10.2004. Plaintiff preferred first appeal before the Lower Appellate Court where the Court below ignored the evidence of both the plaintiff all well as defendant recorded in examination-in-chief by way of affidavits. The learned Court below observed as under: - SAO No.24 of 2005 - 2 - “In evidence of the plaintiff statements of PW1 Inder Singh, PW2 Malkiat Singh Lamberdar, PW3 Jaswant Singh Kanungo, PW4 Jasveer Singh were got recorded. Examinations-in-chief of each of these witnesses were substituted by affidavits. In this manner Ex.PW1/A, Ex.PW2/A, Ex.PW3/A, Ex.PW4/A, affidavits of Inder Singh, Malkiat Singh, Jaswant Singh and Jaswant and Jasveer Singh respectively were led in evidence of plaintiff substituting their respective examinations-in- chief. In evidence of defendants, statement of DW1 Kewal Krishan, DW2 Gurbachan Singh were got recorded. Their examinations-in-chief were substituted by DW1/A, affidavit of Kewal Krishan, Ex.DW2/A affidavit of Gurbachan Singh defendant No.2 respectively. Substituting examination-in- chief of a witness by affidavit is not legally permissible mode of recording statement of a witness may it be its examination-in-chief. Therefore, affidavits of witnesses of plaintiff and defendants are liable to be ignored. By ignoring such affidavits, examination-in-chief of respective witnesses would become blank. Trial Court had given findings on all the issues on basis of inadmissible evidence in the form of affidavits substituting examination-in-chief of all the witnesses. When findings of trial court are inter alia dependent on an inadmissible evidence, those are unable to be maintained. Accordingly, findings of trial court on issues No.1 to 3 are set aside. It was held by the Appellate Court that the Trial Court has given finding on all the issues on the basis of inadmissible evidence which is in the form of affidavits substituted in examination-in-chief of all the witnesses, therefore, the judgment SAO No.24 of 2005 - 3 - and decree of the Trial court was set aside and the case was remanded back to the Trial Court with the following directions: “(i) Trial Court should allow both the parties to recorded the statements of their respective witnesses already examined whose examinations- in-chief were substituted by their respective affidavits as contemplated under Sections 137/138 of Indian Evidence Act. (ii) After recording statements of witnesses of the plaintiff and defendants as contemplated under Sections 137 and 138 of Indian Evidence Act, trial Court should afford opportunities to plaintiff for producing rebuttal evidence in accordance with the law. (iii) After opportunities to lead evidence were given to both parties, turn by turn, in accordance with law, trial Court should re-decide all the issues in accordance with the law. It should also re- decided suit in accordance with the law. (iv) Parties or their representatives should put appearance before trial Court on 10.3.2005.” Learned counsel for the appellant has vehemently contended that by virtue of Section 12(b) of Code of Civil Procedure (Amendment) Act, 2002, Rule 4 has been substituted in order 18 of the Code of Civil Procedure which reads as under: “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 SAO No.24 of 2005 - 4 - 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, 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. (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. SAO No.24 of 2005 - 5 - (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.” It is submitted that, according to the above provision of law, in every case, the examination-in-chief of witnesses shall be by way of affidavit and copies thereof shall be supplied to the opposite party, by the party who calls him for evidence. The learned counsel for the appellant has also relied upon a decision of the Supreme Court in the case of “Salem Advocate bar Association, Tamil Nadu vs. Union of India” AIR 2003 Supreme Court 189, in which the Supreme Court has held as under: “18. 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. SAO No.24 of 2005 - 6 - After hearing learned counsel for the parties, I am of the view that the impugned order passed by Additional District Judge, Moga, on 21.2.2005 is contrary to the statutory provisions of law as also the law laid down by the Supreme Court in case of Salem Advocate bar Association (supra). As such, the impugned order dated 21.2.2005 cannot be sustained and is thus set aside. The appeal is allowed and the case is remanded back to the Additional District Judge, Moga to decide the appeal on merits on the basis of evidence available on record. The learned First Appellate Court is further directed to decide the appeal as expeditiously as possible preferably within a period of six months from the date of receipt of a certified copy of this order. No costs. (RAKESH KUMAR JAIN) January 30, 2009 JUDGE vivek