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2014 DIGILAW 1090 (KAR)

Shivappa Fakirappa Badavannavar v. Manjunath

2014-12-16

K.N.PHANEENDRA, MOHAN M.SHANTANAGOUDAR

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JUDGMENT 1. The order dated 20.10.2014 in W.P. No. 102919 of 2014 and connected matters is called in question in this appeal. 2. The short question to be decided in this appeal is as to whether examination-in-chief by way of affidavit shall be permitted, in the Election Petition arising out of election of Corporator/Councilor of Municipal Corporation? 3. By the impugned order, the learned Single Judge has held that there is no bar for the Court below to permit the submission of affidavit instead of recording of examination-in-chief by the Court. 4. Sri Nataraj, learned Senior Advocate appearing on behalf of the appellant, drawing the attention of the Court to another judgment of this Court passed by learned Single Judge in Election Petition No. 7 of 2008 decided on 12.01.2011, submitted that the Court below is not empowered to record the evidence of the parties by permitting them to submit their affidavits instead of examination-in-chief. 5. Before proceeding further, it may be beneficial to refer to certain provisions which are relevant for deciding the issue involved. Section 33 of the Karnataka Municipal Corporations Act, 1976, (for short the Act) deals with the Election Petitions. It specifies that no election of a Councilor shall be called in question except by an election petition presented for adjudication to the District Court having jurisdiction, within the stipulated time. 6. Section 36 of the Act prescribes the procedure to be followed by the Court while deciding the election petitions. The same reads thus:- “36. Procedure to be followed by the Court – The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed by the Court as far as it can be made applicable, in the trial and disposal of an election petition under this Act.” 7. From the aforementioned, it is clear that the procedure as contemplated under the Code of Civil Procedure, 1908, with regard to suits shall be followed in the trial and disposal of election petition under the Karnataka Municipal Corporations act, as far as it can be made applicable. 8. Order XVIII Rule 4 of the Code of Civil Procedure (hereinafter called as Code) as amended in the year 2002 contemplates recording of evidence in civil suits. The relevant portions of Rule 4 of Order XVIII read thus:- “4. 8. Order XVIII Rule 4 of the Code of Civil Procedure (hereinafter called as Code) as amended in the year 2002 contemplates recording of evidence in civil suits. The relevant portions of Rule 4 of Order XVIII read thus:- “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.” 9. In this context, it is also relevant to note Rule 5 and Rule 13 of Order XVIII of Code which read thus:- “5. How evidence shall be taken in appealable cases In cases in which an appeal is allowed, the evidence of each witness shall be – (a) Taken down in the language of this Court:- (i) In writing by, or in the presence and under the personal direction and superintendence of, the Judge. (ii) From the dictation of the Judge directly on a typewriter. (b) If the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge. 13. Memorandum of evidence in unappealable cases In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.” 10. Sub-Rule (1) of Rule 4 of Order XVIII, after the amendment of the year 2002, makes it abundantly clear that examination-in-chief of a witness shall be on affidavit. Sub-Rule (1) of Rule 4 of Order XVIII, after the amendment of the year 2002, makes it abundantly clear that examination-in-chief of a witness shall be on affidavit. This Rule has been brought in the statute book in order to avoid unnecessary delay in recording the evidence of the witnesses. Rule 5 of Order XVIII in the present form was on the statute book even prior to amendment of the year 2002. It is specified in Rule 5 that in cases where the appeal is allowed, evidence of each of the witnesses shall be in writing in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge or from the dictation of the Judge directly on a typewriter etc. 11. At the first look, Rule 5 may appear to be in conflict with Rule 4 of Order XVIII. But it is not so. The relevant provisions on the subject appearing in Code of Civil Procedure have to be read as a whole. Different provisions have to be read harmoniously and the effect has to be given to all of them. If two sections of the same statute are repugnant, the known rule is that last must prevail. But, on the general principle that the Legislature must be supposed not to have intended to contradict itself, the Court will endeavour to construe the language of the Legislature in such a way as to avoid having to apply the rule. Hence there cannot be any dispute that a statute must be read as a whole and one provision of the statute should be construed with reference to other provisions of the same statute so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the Courts to avoid a head on clash between two sections of the same Act and whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonize. It should not be lightly assumed that Parliament had given with one hand what it took away with the other. It is the duty of the Courts to avoid a head on clash between two sections of the same Act and whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonize. It should not be lightly assumed that Parliament had given with one hand what it took away with the other. The provisions of one section of a statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Since, none of the provisions in the statute book can be ignored and are to be given effect to, Rules 4 and 5 of Order XVIII of Code require to be harmoniously construed more particularly by keeping in mind the mischief sought to be redressed by the provisions. Rule 5 of Order XVIII of Code cannot be read as an exception of Rule 4 of Order XVIII of Code. Since, Rule 5 of Order XVIII of Code was already in the statute prior to 2002 amendment and as Rule 4 of Order XVIII is amended pursuant to 2002 amendment, the Legislature has made its intention very much clear to the effect that the trial court shall permit the submission of affidavit instead of examination-in-chief to be recorded by the Court by virtue of the amendment of the year 2002. 12. Rule 5 of Order XVIII of the Code refers to the evidence which is required to be recorded in cases where the appeal is provided in contradistinction with the cases where appeal is not provided as envisaged in Rule 13 of Order XVIII of Code. Sub-rule (2) of Rule 4 specifies that the evidence shall be recorded in respect of cross-examination or reexamination, by the Court or by the Commissioner appointed by it. This sub-rule applies irrespective as to whether appeal is allowed or not. The examination of a witnesses would include examination-in-chief, cross-examination and/or reexamination. Since Rule 4(1) of Order XVIII specifically mandates that the examination-in-chief of witnesses shall be on affidavit, only inference that can be drawn by reading Rule 5 of Order XVIII is that Rule 5 envisages a situation where the Court is required to record evidence in the manner laid down therein at the time of cross-examination or reexamination of the witness. There cannot be any dispute that Rule 4 of Order XVIII is introduced by way of amendment to do away with unnecessary wastage of time which may be taken for examination of witness in chief. Rule 4 of Order XVIII does not make distinction between appealable and non-appealable cases so far as mode of recording evidence is concerned, whereas as aforementioned such a difference is found in Rules 5 and 13 of Order XVIII of the Code. Unamended Rule 4 of Order XVIII of the Code provided for the manner in which evidence is to be taken. Under the unamended rule, the entire evidence was required to be adduced in Court, whereas by virtue of the amendment of the year 2002, the examination-in-chief of a witness is to be tendered on affidavit in every case. Hence it is mandatory on the part of the Civil Court to note that the examination-in-chief of the witnesses in every case shall be on affidavit. No exception is made in appealable or non-appealable cases. Hence, as aforementioned, the procedure as contemplated under Rule 5 of Order XVIII of the Code needs to be followed while recording the evidence of the witnesses in cross-examination or reexamination. For the purpose of recording evidence in cross-examination, the court has to follow the procedure prescribed under sub-rule (2) of Rule 4 read with Rule 13 in non-appealable cases and the procedure prescribed under sub-rule (2) of Rule 4 read with Rule 5 in appealable cases. 13. During the course of hearing, Sri. K.M. Nataraj, learned Senior Advocate is fair enough to bring to the notice of the Court, the judgment of the Apex Court in Ameer Trading Corporation Limited vs. Shapoorji Data Processing Limited, 2004 (1) SCC 702 , wherein it is observed as under:- “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.” In the very judgment, the Apex Court has proceeded to observe that, Rule 5 of Order XVIII may be pressed into service at the time of recording evidence in the cross-examination and reexamination in the appealable cases and not while recording examination-in-chief. In effect, the Apex Court in the aforementioned judgment has ruled that the Court dealing with the Civil matters shall permit affidavit to be submitted instead of examination-in-chief, whereas, Rule 5 of Order XVIII of the Code needs to be followed while recording the cross-examination and reexamination of the witnesses. 14. The Judgment dated 12.1.2011 passed by this Court in Election Petition No. 7 of 2008 cited supra by the learned advocate for the writ petitioner may not apply to the facts of this case inasmuch as the said Election Petition arose under the provisions of the Representation of People Act, 1951. This Court while passing the order dated 12.1.2011 in Election Petition No. 7 of 2008 has considered the question keeping in mind the provisions of the Representation of People Act, 1951 and the Election Procedure Rules framed by the Karnataka High Court. It is needless to observe that the said matter did not arise under the provisions of the Municipal Corporation Act. Therefore in our considered opinion, the finding given by this Court on 12.1.2011 in Election Petition No. 7 of 2008 cannot be made applicable to this case. 15. Accordingly, we answer the question raised in this appeal as under:- The examination-in-chief by way of affidavit shall be permitted in the election petition arising out of the election of Corporator/Councilor of Municipal Corporation. 16. By the impugned order, the learned Single Judge has permitted the examination-in-chief by way of affidavit. Since, the impugned order is just and proper, no interference is called for. The appellant shall be permitted to cross-examine the witnesses before the Court below. The appeal stands dismissed. Consequently, I.A. Nos. 1 and 2 of 2014 do not survive for consideration. Accordingly, they are disposed of.