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CASE NO.: Appeal (civil)  9130 of 2003 Special Leave Petition (civil)  13858 of 2003

PETITIONER: Ameer Trading Corporation Ltd.                   

RESPONDENT: Shapoorji Data Processing Ltd.                           

DATE OF JUDGMENT: 18/11/2003

BENCH: CJI, S.B. Sinha & AR. Lakshmanan.

JUDGMENT: JUDGMENT

S.B. Sinha, J :  

       Leave granted.          

       Interpretation of Order 18 Rules 4 and 5 of the Code of Civil  Procedure falls for consideration in this appeal which arises out of a  judgment and order dated 3.7.2003 passed by the High Court of Judicature  at Bombay in W.P. No. 2428/2003.

       The said question arises in the following circumstances.   

The respondent herein filed the suit No. 156/169 of 2001 in the  Court of Small Cause Bombay against the appellant for eviction of the  appellant inter alia on the ground that the provisions of Maharashtra  Rent Control Act, 1999 had no application in relation to the premises in  question. An affidavit was filed by the respondent herein purporting to  be his examination-in-chief to be taken on evidence in the suit.  

An application was filed by the appellant herein objecting to the  said affidavit being accepted inter alia on the ground that the decree  which may be passed in suit being an appealable one, Order 18 Rule 5 of  the Code of Civil Procedure will be applicable.  By reason of an order  dated 17th February, 2003, the learned Trial Judge rejected the said  application of the appellant holding:

"The Court had already acted upon as per the  provisions of Order 18 Rule 4 of C.P.C.  (amended) which authorizes the court to receive  the evidence on affidavit in any matter which  includes the appealable order.  In the given  circumstances the affidavit need not be returned  back to plaintiffs and be asked to give oral  evidence in the matter.

Besides the fact that aspect as above and the  legal position observed by me.  I have also come  across one matter of this court only wherein on  same facts the matter had been taken to the  Hon’ble High Court and the Hon’ble High Court  had directed this court to accept the evidence  on affidavit.  I have also come across certain  observations made by the Small Causes Court  supporting the view that it is legal to accept  evidence on affidavit in any matter.  Hence I do

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not think I should discuss all the authorities  cited by defendants advocate.  Hence I proceed  to pass following order.

Order

Application stands rejected.  Matter is  adjourned to 4.3.2002 at 10.30 a.m. for cross  examination of Plaintiffs."

       Being aggrieved the appellant preferred a writ petition  thereagainst which was dismissed by reason of the impugned order holding  :  

"Heard. The only grievance made in this  Petition is that the Court below has allowed the  Plaintiff to receive evidence on affidavit.   Learned Counsel contends that, that will not be  permissible in view of the provisions contained  in Order XVIII Rule 5 of the Code of Civil  Procedure.  I am not inclined to interfere with  the discretionary order passed by the Court  below.  Besides, I find force in the objection  taken on behalf of the Respondents that the  issue is already concluded and answered by the  decision of this Court dated 20th March, 2003 in  Writ Petition No.708 of 2003.  To my mind, no  prejudice will be caused to the Petitioner, if  the view as taken by the Trial Court was to be  upheld because the Petitioner being Defendant  would get opportunity to cross-examine the  Plaintiff and Plaintiff’s witnesses.

       Hence, no reason to interfere.   Rejected."

       The appellant is in appeal before us aggrieved thereby.          Mr. Rajan Narain, the learned counsel appearing on behalf of the  appellant would submit that Order 18 Rule 4 and Order 18 Rule 5 of the  Code of Civil Procedure should be read harmoniously and so read, it must  be held that Order 18 Rule 4 will have no application in the appealable  cases; and as logical corollary thereof the court must examine all the  witnesses in court.  In support of the said contention, strong reliance  has been placed on Laxman Das Vs. Deoji Mal and Others [AIR 2003  Rajasthan 74].   

       Mr. Nariman, the learned senior counsel appearing on behalf of the  respondent, on the other hand, would submit that a bare perusal of the  provisions contained in Order 18 Rule 4 of the Code of Civil Procedure  would show that an affidavit incorporating examination-in-Chief of a  witness has to be filed in every case and only in the event the said  witness is required to be cross-examined, he would be produced in court.   

       The learned counsel would urge that the Code of Civil Procedure  Amendment Act, 1976 was enacted with a view to do away with the  unnecessary wastage of time which may be taken for examination of a  witness.   

       Mr. Nariman would urge that Order 18 Rule 5 should be read with  Order 18 Rule 13 so as to decipher the difference between the cases  where an appeal is allowed and where appeal is not allowed.  Order 18  Rule 5, the learned counsel would submit, merely lays down the procedure

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for taking the evidence of the witness.  In support of the said  contention, reliance has been placed on F.D.C. Ltd. Vs. Federation of  Medical Representatives Association India (FMRAI) and Others [AIR 2003  Bombay 371].

Order 18 Rule 4 as it originally stood reads 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."

       Order 18 Rules 4 (1), (2), and (3) as they now stand read 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 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."

       The other sub-rules of Rule 4 of Order 18 provide for other and  further procedures as regard examination of witness.   

Rule 5 refers to the evidence which is required to be taken in  cases where the appeal is allowed in contra-distinction with the cases  where appeal is not allowed as envisaged in Rule 13 of Order 18 of the  Code of Civil Procedure.  Rule 5, therefore, envisages a situation where  the Court is required to take down an evidence in the manner laid down  therein which would mean that where cross-examination or re-examination  of the witness is to take place in the court.

       The examination of a witness would include evidence-in-chief,  cross-examination or re-examination.  Rule 4 of Order 18 speaks of  examination-in-chief.  The unamended rule provided for the manner in  which ’evidence’ is to be taken.  Such examination-in-chief of a witness

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in every case shall be on affidavit.  

The aforementioned provision has been made to curtail the time  taken by the Court in examining a witness in chief.  Sub-Rule (2) of  Rule 4 of Order 18 of Code of Civil Procedure provides for cross- examination and re-examination of a witness which shall be taken by the  court or the Commissioner appointed by it.

       We may notice that Rule 4 of Order 18 was amended with effect from  1.7.2002 specifically provided thereunder that the examination-in-chief  in every case shall be on affidavit.  Rule 5 of Order 18 had been  incorporated even prior to the said amendment.   

Rule 4 of Order 18 does not make any distinction between an  appealable and non-appealable cases so far mode of recording evidence is  concerned. Such a difference is to be found only in Rules 5 and 13 of  Order 18 of the Code.

It, therefore, appears that whereas under the unamended rule, the  entire evidence was required to be adduced in Court, now the examination  in chief of a witness including the party to a suit is to be tendered on  affidavit.  The expressions "in every case" are significant.  What,  thus, remains, viz. cross-examination or re-examination in the  appellable cases will have to be considered in the manner laid down in  the Rules, subject to the other sub-rules of Rule 4.

       Rule 5 of Order 18 speaks of the other formalities which are  required to be complied with.  In the cases, however, where an appeal is  not allowed, the procedures laid down in Rule 5 are not required to be  followed.          

    In a situation of this nature, the doctrine of suppression of  mischief rule as adumbrated in Heydon’s case [3 Co Rep 7a, 76 ER 637]  shall apply. Such an amendment was made by the Parliament consciously  and, thus, full effect thereto must be given.

       In Halsbury’s Laws of England, Volume 44(1), fourth reissue, para  1474, pp 906-07, it is stated :

       "Parliament intends that an enactment  shall remedy a particular mischief and it is  therefore presumed that Parliament intends that  the court, when considering, in relation to the  facts of the instant case, which of the opposing  constructions of the enactment corresponds to  its legal meaning, should find a construction  which applies the remedy provided by it in such  a way as to suppress that  mischief.  The  doctrine originates in Heydon’s case where the  Barons of the Exchequer resolved that for the  sure and true interpretation of all statutes in  general (be they penal or beneficial,  restrictive or enlarging of the common law),  four things are to be discerned and considered :

(1)     what was the common law before the making  of the Act;

(2)     what was the mischief and defect for which  the common law did not provide;    

(3)     what remedy Parliament has resolved and  appointed to cure the disease of the  commonwealth; and

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(4)     the true reason of the remedy,

and then the office of all the judges is always  to make such construction as shall :

(a)     suppress the mischief and advance  the remedy; and

(b)     suppress subtle inventions and  evasions for the continuance of the  mischief pro privato commodo (for  private benefit); and

(c)     add force and life to the cure and  remedy according to the true intent  of the makers of the Act pro publico  (for the public good)."

Heydon’s Rule has been applied by this Court in a large number of  cases in order to suppress the mischief which was intended to be  remedied as against the literal rule which could have otherwise covered  the field. [See for example, Smt. PEK Kalliani Amma and Others vs. K.  Devi and Others, [AIR 1996 SC 1963; Bengal Immunity Co. Ltd. vs. State  of Bihar and Others, AIR 1955 SC 661; and Goodyear India Ltd. vs. State  of Haryana and Another, AIR 1990 SC 781].

It is now well-settled that for the purpose of interpretation of  statute the same has to be in its entirety.  

       Furthermore, in a case of this nature, principles of purposive  construction must come into play. (See Indian Handicrafts Emporium Vs.  Union of India (2003) 7 SCC 589).

In Chief Justice of A.P. Vs. L.V.A. Dikshitulu [(1979) 2 SCC 34],  this Court observed: "The primary principle of interpretation is  that a Constitutional or statutory provision  should be construed "according to the intent of  they that made it" (Coke). Normally, such intent  is gathered from the language of the provision.  If the language or the phraseology employed by  the legislation is precise and plain and thus by  itself proclaims the legislative intent in  unequivocal terms, the same must be given effect  to, regardless of the consequences that may  follow. But if the words used in the provision  are imprecise, protean or evocative or can  reasonably bear meanings more than one, the rule  of strict grammatical construction ceases to be  a sure guide to reach at the real legislative  intent. In such a case, in order to ascertain  the true meaning of the terms and phrases  employed, it is legitimate for the Court to go  beyond the arid literal confines of the  provision and to call in aid other well- recognised rules of construction, such as its  legislative history, the basic scheme and  framework of the statute as a whole, each  portion throwing light, on the rest, the purpose  of the legislation, the object sought to be  achieved, and the consequences that may flow  from the adoption of one in preference to the  other possible interpretation.

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        In Kehar Singh Vs. State (Delhi Admn.) [AIR 1988 SC 1883 : (1988)  3 SCC 609], this Court held: "...But, if the words are ambiguous, uncertain  or any doubt arises as to the terms employed, we  deem it as our paramount duty to put upon the  language of the legislature rational meaning. We  then examine every word, every section and every  provision. We examine the Act as a whole. We  examine the necessity which gave rise to the  Act. We look at the mischiefs which the  legislature intended to redress. We look at the  whole situation and not just one-to-one  relation. We will not consider any provision out  of the framework of the statute. We will not  view the provisions as abstract principles  separated from the motive force behind. We will  consider the provisions in the circumstances to  which they owe their origin. We will consider  the provisions to ensure coherence and  consistency within the law as a whole and to  avoid undesirable consequences."

       In District Mining Officer Vs. Tata Iron & Steel Co. [JT 2001 (6)  SC 183 : (2001) 7 SCC 358], this Court stated: "The legislation is primarily directed to the  problems before the legislature based on  information derived from past and present  experience. It may also be designed by use of  general words to cover similar problems arising  in future. But, from the very nature of things,  it is impossible to anticipate fully in the  varied situations arising in future in which the  application of the legislation in hand may be  called for and words chosen to communicate such  indefinite referents are bound to be in many  cases, lacking in clarity and precision and thus  giving rise to controversial questions of  construction. The process of construction  combines both literal and purposive approaches.  In other words, the legislative intention i.e.  the true or legal meaning of an enactment is  derived by considering the meaning of the words  used in the enactment in the light of any  discernible purpose or object which comprehends  the mischief and its remedy to which the  enactment is directed."

       In East India Hotels Ltd. Vs. Union of India [(2001) 1 SCC 284]  this Court observed: "an act has to be read as a whole, the  different provisions have to be harmonized and  the effect has to be given to all of them."

In Laxman Das (supra) the Rajasthan High Court held:

"Therefore, in view of the above, the words  "in every case", contained in R.4 of O.18 have  to be understood in a limited sense that every  case wherein the ultimate order is not  appealable, and by no means, it can take in its  ambit the orders which would be appealable.  In  view of above, the position which emerges is  that in cases where the final orders to be  passed by the Court would not be appealable, the

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discretion has been conferred upon the Court to  accept the examination-in-chief in the form of  affidavit as provided under O.18, R. 4; or to  record the substance thereof by the Court itself  as provided under O.18, R.13.  But in cases  where orders would be appealable, the evidence  is to be recorded strictly as provided under  O.18, R.5."

On the other hand, in F.D.C. Ltd. (supra) it has been held:

"The harmonious reading of Rr. 4 and 5 of  O.XVIII 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 R.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 R.13 of O.XVIII.  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  R.13 of O.XVIII 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 R.5 of O.XVIII.   Undoubtedly, in both the cases, for the purpose  of cross-examination, the Court has to follow  the procedure prescribed under sub-rule (2) of  R. 4 read with R.13 in case of non-appealable  cases and the procedure prescribed under sub- rule (2) of R. 4 read with R.5 in appealable  cases.

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 to be recorded  by following the procedure prescribed under R.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 R.13 of  O.XVIII.  The cross-examination of such deponent  in case of appealable cases, will have to be  recorded by complying the provisions of R.5,  where as in case of non-appealable cases the  Court would be empowered to exercise its power  under R.13"

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       We agree with the view of the Bombay High Court.

       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-examination  him. The defendant would not be prejudiced  in any manner whatsoever 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.  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.          Applying the aforementioned principles of interpretation of  statute, we have no doubt in our mind that Order 18 Rules 4 and 5 are  required to be harmoniously construed. Both the provisions are required  to be given effect to and as Order 18, Rule 5 cannot be read as an  exception to Order 18 Rule 4.                  For the reasons aforementioned, there is no merit in this appeal,  which is dismissed accordingly.  However, there shall be no order as to  costs.