-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9024 of 2007 1. Smt.Ashabai Shantaram Labdhe and others ..Petitioners vs. 1. Shri Rajendra Manohar Pokale and others ..Respondents Shri B.K.Raje for petitioners. Shri Ajitkumar Shah for respondent no.2 CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 8th February, 2008 8th February, 2008 8th February, 2008 P.C. P.C. P.C. 1. By this petition under Article 227 of the constitution of India, the petitioners are challenging the order passed by the Court of Small Causes at Mumbai dated 29th October, 2007, allowing the application filed by original defendant no.2 who is respondent no.2 before me. Since the contesting respondent no.2/original defendant no.2 is served and Shri Ajitkumar Shah is appearing for him, the presence of other respondents is dispensed with. 2. It is the case of the petitioners that they filed a suit in the Court of Small Causes at Mumbai against the defendants for a declaration -2- that the defendants have no right, title or interest in the suit premises and that they should be evicted therefrom. It is not necessary to refer to the plaint in as much as none disputes that the suit is for possession and that there is a written statement filed. 3. After the suit was listed for framing issues, issues framed and directions were given to file the affidavit in lieu of examination in chief the plaintiff no.4/petitioner no.4 before me stepped into the witness box. He has filed his affidavit in lieu of examination in chief and filed the list of documents. The documents were shown for identification and marked as Articles instead of exhibiting them. Respondent no.2’s Advocate cross examined the petitioner no.4. Another witness was examined and he was cross examined as well. Thereafter the petitioners/plaintiffs closed their case. 4. The petitioners are aggrieved by the fact that respondent no.2 filed his affidavit in lieu of examination in chief on 20th September, 2004 and annexed therewith the list of documents. The evidence of respondent no.2 on affidavit in lieu of examination in chief was allowed in as -3- much as the said affidavit was taken on record. The case was adjourned for inspection of documents and cross examination of respondent no.2. 5. On that date the petitioners were served with the copy of the affidavit of Mrs.Jabeen M.Siddiqui dated 8th October, 2007. The petitioners objected to these documents being produced in as much as it is their case that the evidence tendered on affidavit by respondent no.2 does not disclose anything about these documents. There is no statement in examination in chief in sofar as these documents and there details are not forthcoming. On 11th October, 2007, the learned Judge, therefore, marked the documents tendered by respondent no.2 as Articles. The matter was adjourned for cross examination of respondent no.2 on 26th October, 2007. 6. On that date instead of submitting himself for cross examination by the petitioners an Application by respondent no.2 enclosing therewith a further affidavit of the Deponent was served on the petitioners. The application stated that in the earlier affidavit of evidence -4- some documents could not be mentioned and, therefore, the deponent was advised to file the supplementary affidavit/additional affidavit in lieu of the examination in chief. 7. The petitioners objected to this course and invited attention of the learned Judge to Order 18 Rule 4 of the Code of Civil Procedure (amended) and pointed that the affidavit in lieu of examination in chief being tendered the examination in chief has concluded and the witness has to be cross examined. There is no provision in law permitting filing of Additional affidavit in lieu of Examination in chief. Therefore, such an affidavit cannot be filed or taken on record. That objection having been over ruled by the impugned order, this petition under Article 227 of the Constitution of India is preferred. 8. The learned Judge has in the impugned order observed thus: "4. The Ld.Advocate for plaintiffs submitted that there is no provision in the Civil Procedure Code or in the Evidence Act to file additional -5- examination in chief to prove the documents which earlier the Court refused to accept in evidence being not referred and proved in earlier evidence by the same witness and, therefore, the application of the defendant no.2 cannot be allowed. However, till today, the cross examination of the defendant no.2 has not been commenced. The defendant no.2 has already submitted documents on record. This Court had not marked the documents with exhibit numbers merely because in that affidavit of evidence the defendant no.2 has not made any reference of the said documents so also the contents of the documents were not proved in the evidence on affidavit. Therefore, further an opportunity must be given to the defendant no.2 to give proper evidence regarding the said documents......" In the opinion of the learned Judge once the affidavit in lieu of the examination in chief is tendered, so also some documents were filed therewith, yet, the cross examination of the deponent of the said affidavit having not -6- commenced so also when the documents are already tendered there will be no prejudice if opportunity is given to respondent no.2 to give proper evidence regarding the said documents. 9. When this petition was placed before me I had invited the attention of Shri Shah appearing for respondent no.2 to the order passed by me on 6th September, 2007 in Chamber Summons No.1116 of 2007 in Suit No.1845 of 1987. Time was sought by Shri Raje and Shri Shah to go through the said order and make submissions. 10. Shri Raje submits that the order passed by me fully concludes the issue and order under challenge is, therefore, unsustainable. 11. Shri Shah, however, supports the impuigned order by submitting that the subject provisions are not mandatory but directory. In appropriate cases inherent powers of the Court are available to place on record the additional documents and bar under order 13 Rules 1 and 2 would not be applicable. He has also relied upon Order 18 Rule 17A and on a judgment of the learned single Judge of this Court reported in 2007(1) Mh.L.J. 635 (Doma s/o Lalaj Chachere and others -7- Vs.Executive Engineer). Order 18 of the Code of Civil Procedure deals with the hearing of the suit and examination of witnesses. Order 18 Rule 2 states that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Sub-rule (2) states that the other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. Sub-rule (3) states that the party beginning may then reply generally. This is what order 18 Rule 2 stipulates. Thereafter Rule 4 deals with recording of evidence. Rule (4) reads as under: "R.4(1) In every case, the examination inchief 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 -8- 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: 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. -9- (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 -10- 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. (7) The Court may be 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." Amended Rule 4(2) says that the evidence of the witness in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the judge. Now, order 18 rule 4 makes a clear departure and in all cases the examination in chief on affidavit and copies thereof have to be -11- supplied to the opposite party provided where the documents are filed and the parties rely upon the documents the proof and admissibility of such documents which are filed along with the documents shall be subject to the order of the Court. Thereafter further procedure is stipulated. 12. Thus, a marked departure is that in stead of oral depositions in chikef in all cases, as was the position earlier, now the affidavit in lieu of examination in chief can be tendered. Upon the same being tendered and taken on record in accordance with the Rules of the Court, the same concludes the examination in chief. Thereafter the witness is available for cross examination. Order 18 Rule 17A upon which reliance is placed has now been omitted in the Code of Civil Procedure. In other words, with effect from 1st July, 2002, the same is omitted. Thus, the production of evidence not previously known or which could not be produced despite due diligence which was the position prevailing earlier and now stands deleted. 13. This precise controversy fell for my consideration in the Chamber Summons (referred -12- to supra) and also in the context of the provisions contained in order 13 Rule 1 of the Code of Civil Procedure. The deletion of this earlier provision and marked departure in the amended Code of Civil Procedure has been noticed by me. I have held that the C.P.C. now does not contemplate any additional examination in chief on affidavit. In other words, there cannot be any further or subsequent examination in chief in the form of the affidavit. Once an affidavit is of one witness in lieu of his examination in chief is taken on record, his examination in chief is concluded. In the facts of this case, it is not disputed that the affidavit in lieu of examination in chief was tendered and the matter was placed for cross examination. In such circumstances, the application filed by respondent no.2 to take on record the additional or supplementary affidavit in lieu of examination in chief was a clear recourse to order 18 Rule 17A. That having been deleted, the affidavit could not be taken on record. It is not as if the documents themselves cannot be taken on record. The words "his evidence" means the oral and documentary evidence. The evidence can consist of number of witnesses. Merely because the second defendant -13- has stepped into the box and has omitted or has despite due diligence could not tender some documents earlier it is not as if there is no opportunity available to him. All that is required is examination of one more witness to introduce such documents and that is not ruled out even by amended Code of Civil Procedure. 14. It is in these circumstances that I am unable to accept the arguments of Shri Shah that the impugned order does not call for any interference. The impugned order is clearly overlooking the Amended Code of civil Procedure and the intention of the Legislature in expediting hearing of the civil suits. That being the clear intent, if the course adopted by the learned Judge is allowed to be adopted in the Courts below, that would defeat the amended Code of Civil Procedure. 15. Reliance placed upon the judgment of the learned single Judge (supra) by Shri Shah is, therefore, misplaced. 16. Firstly, that is a decision rendered in the context of the old civil procedure code and the position prevailing in the Labour and Industrial -14- Court. That does not go strictly by the Code of Civil Procedure. That apart, the C.P.C.was permitting recourse to order 18 Rule 17A. Further the attention of the learned Judge was not invited to the deletion of this provision in the amended Code of Civil Procedure. For all these reasons that judgment is clearly distinguishable. 17. In the result, I am of the opinion that the controversy is fully covered by my order in the chamber summons and for the reasons assigned therein, the impugned order cannot be sustained. It is accordingly quashed and set aside. However, upon conclusion of the cross examination of respondent no.2, if the documents could not be produced or taken on record, this order does not prevent respondent no.2 from examining further witnesses and placing on record the documents if otherwise permissible in law. Petition is allowed. The impugned order is quashed and set aside with liberty as above. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)