JUDGMENT ABHILASHA KUMARI, J. 1. Rule. Mr. N.V. Gandhi, learned advocate, waives service of notice of Rule for respondent No. 1. Though served, respondents Nos. 2 and 3 (original defendants Nos. 2 and 3) have not put in an appearance. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. 2. The challenge in this petition preferred under Articles 226 and 227 of the Constitution of India, is to the order dated 06.12.2012, passed by the learned Principal Civil Judge, Mandvi, Surat, below the application at Ex.167, in Regular Civil Suit No. 12 of 2007. 3. Briefly stated, the facts, as relevant to the decision of the petition are that, respondent No. 1 (original plaintiff) preferred Special Civil Suit No. 57 of 1990, before the Civil Court, Mandvi, challenging a registered will dated 06.09.1973, made by deceased Jatariyabhai Chandiyabhai, who died on 13.10.1989, in favour of the predecessor of the petitioners (original defendant No. 1). According to the petitioners, they are in possession of the land in question and are cultivating it. After the division and allocation of District Surat, the suit has been renumbered as Regular Civil Suit No. 12 of 2007. Issues were framed and the suit was listed for evidence. According to the petitioners, as per Rule 5 of Order 18 of the Code of Civil Procedure, 1908 (the Code for short), the Court ought to take evidence by way of oral deposition in appealable cases, and not by filing an affidavit. The petitioners, who are the legal heirs of original defendant No. 1, made an application at Ex.167 under the provisions of Rule 5 Order 18 of the Code, to the effect that Rule 5 Order 18 has overriding effect over Rule 4 Order 18; therefore, instead of taking the deposition on affidavit, the Trial Court may take the deposition of the plaintiff by way of examination-in-chief. The said application has been rejected by the Trial Court by the impugned order, giving rise to the present petition. 4. Mr. P.Y. Divyeshwar, learned advocate for the petitioners, would submit that Rule 4 of Order 18 and Rule 5 of Order 18 should be read harmoniously. If so read, it would emerge that Rule 4 of Order 18 would have no application in appealable cases. 4. Mr. P.Y. Divyeshwar, learned advocate for the petitioners, would submit that Rule 4 of Order 18 and Rule 5 of Order 18 should be read harmoniously. If so read, it would emerge that Rule 4 of Order 18 would have no application in appealable cases. As a logical corollary thereof, it is incumbent upon the Trial Court to permit the examination of all the witnesses in the Court in appealable cases that fall under the provisions of Rule 5 Order 18 of the Code. It is submitted that the Trial Court has misinterpreted and misapplied the said two provisions of law by arriving at the erroneous conclusion that it is specifically provided under Rule 4 of Order 18 that the examination-in-chief in every case shall be on affidavit and that the said provision of law does not make any distinction between appealable and non appealable cases in this respect. On the above grounds, it is prayed that the impugned order passed by the Trial Court be quashed and set aside. 5. On the other hand, Ms. Falguni Bhagat, learned advocate for Mr. N.V. Gandhi, learned advocate for respondent No. 1, has opposed the submissions advanced on behalf of the petitioners by contending that the provisions of Order 18 Rule 4 of the Code specify that in every case the examination-in-chief of a witness shall be on an affidavit. It does not make any distinction between appealable and nonappealable cases. Order 18 Rule 5, which applies only to appealable cases, lays down the manner in which evidence is to be taken in such cases. It nowhere states that the requirement of the examination-in-chief of a witness on an affidavit shall be dispensed with. It is submitted that the impugned order of the Trial Court reflects the correct position of law and as no illegality or irregularity has been committed while passing the said order, this Court may not exercise its supervisory jurisdiction. 6. In support of the above submissions, reliance has been placed upon a judgment of the Supreme Court in Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. AIR 2004 SC 355 . 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 8. 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 8. The short, but pertinent question that falls for determination by this Court is whether the provisions of Order 18 Rule 5 of the Code can be read as an exception to Order 18 Rule 4, which lays down that in every case, the examination-in-chief of a witness shall be on affidavit. 9. In order to answer this question, it may be fruitful to advert to the relevant provisions of Order 18 Rule 4, as below: "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. (Emphasis supplied) 10. Rule 4 of Order 18 of the Code, as it now stands, is the result of an amendment that came into force with effect from 01.07.2002. Prior thereto, Order 18 Rule 4 provided for the evidence of a witness in attendance to be taken orally in the open Court, in the presence and under the personal direction and superintendence of the Judge. However, upon coming into force of the amendment, it is no longer necessary to take oral evidence of the witness in the open Court. Instead of this, it is now specifically provided that the examination-in-chief shall be on an affidavit. The legislature has used the word `shall’ that denotes the mandatory nature of this provision. No exceptions to this rule are provided. 11. Order 18 Rule 5 reads as below: (a) Taken down in the language of the 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.” 12. This provision refers to the manner in which evidence is required to be taken in cases where an appeal is allowed. (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.” 12. This provision refers to the manner in which evidence is required to be taken in cases where an appeal is allowed. Rule 5 of Order 18 lays down the manner in which the Court is required to take down evidence where cross-examination or reexamination is to take place in the Court. The provisions of Order 18 Rule 4 make no distinction whatsoever regarding appealable and non-appealable cases. The specific language used in Rule 4 of Order 18 is indicative that it applies to appealable and non-appealable cases equally. The words in every case indicate that examination-in-chief of a witness shall be tendered on affidavit, irrespective of whether the case is appealable or non-appealable. The requirement of tendering the examination-in-chief by way of affidavit would apply in all cases. It, therefore, follows that the provisions of Order 18 Rule 5 cannot be read as an exception to Rule 4 of Order 18. Order 18 Rule 5 only lays down the mode and manner in which evidence is to be taken or recorded in appealable cases. There is no dispensation of the mandatory requirement of tendering the examination-in-chief by way of an affidavit. 13. A conjoint perusal of the provisions of Order 18 Rule 4 and Order 18 Rule 5 would make it amply clear that there is no conflict between the two provisions, which are required to be read harmoniously. However, the construction put by the learned advocate for the petitioners is the converse of what is intended by the legislature. 14. The issue is no longer res integra. In Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. (supra), the Supreme Court has examined the very issue that has arisen for consideration in the present case and has held as below: “14. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction with the cases where appeal is not allowed as envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction 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. 15. The examination of a witness would include evidence-in-chief, cross examination or reexamination. 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 in every case shall be on affidavit. 16. 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 reexamination of a witness which shall be taken by the Court or the Commissioner appointed by it. 17. 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. 18. 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. 19. 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 appealable cases will have to be considered in the manner laid down in the Rules, subject to the other sub rules of Rule 4. 20. 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. 21. 20. 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. 21. 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.” (Emphasis supplied) 15. The principles of law enunciated in the above quoted judgment are conclusive and apply squarely to the issue that falls for determination in the present case. The provisions of Order 18 Rule 4, stipulating that in every case, the examination-in-chief of a witness shall be on affidavit, would apply to appealable cases that fall under the provisions of Order 18 Rule 5, as well. 16. The Trial Court has arrived at the correct conclusion in the impugned order, which is in consonance with the enunciation of law by the Supreme Court in Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. (supra). 17. The Trial Court has exercised the jurisdiction vested in it in a valid, legal and proper manner. Hence, this Court does not consider it appropriate to interfere with the impugned order. 18. The petition is, therefore, rejected. Rule is discharged. There shall be no orders as to costs.