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2018 DIGILAW 704 (JK)

Manorma Sharma v. Sahib Saran Khajuria

2018-09-14

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In the instant writ petition, the petitioner seeks quashing of order dated 25th October, 2017 passed by the Principal District Judge, Jammu, whereby petitioner has been directed to file affidavits of his witnesses. 2. The facts in nutshell are that the Suit for partition by meets and bounds, in which the petitioner is one of the defendants, is pending trial in the Court of Principal District Judge, Jammu. The petitioner has already submitted a list of witnesses, which is on the record of the suit file. There is a prayer on behalf of the petitioner for summoning the witnesses in accordance with law and she is not in a position to bring them to the Court for their evidence on her own nor can secure affidavits from them. They will appear only if summons from the Court are served on them. The Principal District Judge, Jammu, however, taking cognizance of the fact of filing of the list of witnesses by the petitioner, obliviously in accordance with law, but without following the course of law to summon them, has directed her to file their affidavits. The petitioner has brought it to the notice of the Court that the witnesses have to be first summoned as the petitioner cannot produce them on her own or secure their affidavits, and then ask if they want to give evidence on affidavit. In such circumstances, the petitioner cannot be compelled to produce the witness on her own or be required to file their affidavits. 3. The aforesaid impugned order has been challenged by the petitioner on the grounds that the normal course for enforcement of appearance of the witnesses is through summons by the Court, unless, of course, the party citing witnesses can produce them on their own. The entire scheme of Order XVI rests on the aforesaid statutory principle. Under Order XVIII Rule 4 of the Code of Civil Procedure, examination-in-chief of the witnesses can be allowed on affidavits, but it does not require a party, citing witnesses for evidence on his/her behalf to produce them on his own or file their affidavits. In no event, the party can be compelled to produce such a witness or secure his affidavit. 4. In no event, the party can be compelled to produce such a witness or secure his affidavit. 4. Learned counsel for the petitioner relies upon the judgment of Apex Court, rendered in case titled, “Salem Advocate Bar Association, Tamil Nadu vs. Union of India”, reported in AIR 2003 Supreme Court 189 and judgment of Andhra Pardesh High Court, rendered in case titled, “Rita Pandit Vs. Atul Pandit”, reported in AIR 2005 Andhra Pradesh 253. Whereas counsel for the respondent-plaintiff has stated that in terms Order XVIII Rule 4 and 5 of the CPC, in every case, examination-in-chief of witness shall be on affidavit. He has also argued that main aim of defendant/petitioner is to linger on the matter and setting at naught the direction passed by this court. 5. I have considered the rival contention of the learned counsel for the parties. 6. Order XVIII Rule 4 and 5 of the CPC 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. 5. How evidence shall be taken in appealable cases In case in which an appeal is allowed the evidence of each witness shall be,- (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, or (ii) from the dictation of the Judge directly on a type-writer, or (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.” 7. Petitioner is the defendant No.2 in the case pending before the Court below. In terms of judgment dated 21st October, 2016, rendered in Petition u/s 104 No.90 of 2014, this Court directed the Court below to conclude the proceedings within a period of six months. The concluding para of the aforesaid judgment reads as under:- “14. At this stage, learned counsel for the petitioner/defendant states that on appearance of the witnesses, the petitioner/defendant would conclude his evidence within two dates. 15. The concluding para of the aforesaid judgment reads as under:- “14. At this stage, learned counsel for the petitioner/defendant states that on appearance of the witnesses, the petitioner/defendant would conclude his evidence within two dates. 15. Learned counsel for the petitioner further states that the witnesses other than those, who have not put in appearance would also be concluded expeditiously by the petitioner/defendant and at any rate within a period of six months as per law. 16. Parties to put in appearance before the learned Trial Court on 21st November, 2016. Petitioner allowed in the aforementioned terms.” 8. The aforesaid judgment was passed by this Court in the above said petition, filed by one of the defendants, by virtue of which, he was directed to produce all his witnesses’ dasti on his own. There was a clear-cut direction given by this Court to conclude the proceedings within a period of six months. Trial court could not conclude the trial during six months as directed by this court, because all the defendants failed to complete the evidence. 9. By virtue of impugned order, Court below has now directed one of the defendants namely Manorma to produce the evidence of her witnesses for examination in chief on which she relies, by way of affidavits. From the perusal of interim order dated 28th September, 2017 passed by the Court below, it reveals that Mr. Anil Anand, Advocate, has filed his Vakalatnama on behalf of the petitioner herein and on the said date he was directed to file the evidence in the shape of affidavits of the witnesses upon which he relies and the witnesses regarding which the list has been furnished. The said order, i.e. order dated 28th September, 2017 was repeated on 10.10.2017 and again repeated by the Trial Court on 25th October, 2017, which is impugned in the instant petition, but no witness was produced. The petitioner never raised this plea before Court below during the time of passing of these interim orders by court below. 10. The Hon’ble Supreme Court in 2012 (2) RCR (CIVIL in case titled, “Rasiklal Manickchand Dhariwal and Another Vs. The petitioner never raised this plea before Court below during the time of passing of these interim orders by court below. 10. The Hon’ble Supreme Court in 2012 (2) RCR (CIVIL in case titled, “Rasiklal Manickchand Dhariwal and Another Vs. M/s M. S. S. Food Products, passed in Civil Appeal No. 10112 of 2011 (arising out of SLP (Civil) No. 27180 of 2008) on 25th November, 2011 has held as under:- “Civil Procedure Code, Order 18 Rules 4 and 5-Under Order 18 Rule 4, examination-in-chief in every case shall be on affidavit-Rule 4 did not make any distinction between appealable and non-appealable cases-Irrespective of whether the case is appealable or non-appealable the examination-in-chief has to be permitted in the form of affidavit-Cross-examination or re-examination in the appealable cases will have to be considered in the manner laid down in the rules, subject to other sub-rules of Rule-4-Presence of a party during examination-in-chief is not imperative-if any objection is taken to any statement in the affidavit, it can always be made before the court in writing or while cross examining the witnesses.” 11. In para-55, it was further held as follows:- 55. Now, we consider the decision of this Court in Ameer Trading Corpn. Ltd. 10. The interpretation of Order XVIII Rule 4 and Rule 5 of the Code fell for consideration in that case. In paragraph 15 of the Report, this Court stated, ‘the examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order XVIII speaks of examination-in-chief. ......Such examination-in-chief of a witness in every case shall be on affidavit". The Court then stated in paragraph 17 that Rule 4 of Order XVIII, as amended with effect from July 1, 2002 specifically provides that the examination-in-chief in every case shall be on affidavit. It was noticed by this Court that Rule 5 of Order XVIII has been incorporated prior to the amendment in Rule 4. Noticing the difference between Rule 4 and Rule 5 of Order XVIII, the Court said that Rule 4 of Order XVIII did not make any distinction between appealable and non-appealable cases so far as mode of recording evidence is concerned. Then, in paragraph 19 of the Report, the Court observed as under:- “19. Noticing the difference between Rule 4 and Rule 5 of Order XVIII, the Court said that Rule 4 of Order XVIII did not make any distinction between appealable and non-appealable cases so far as mode of recording evidence is concerned. Then, in paragraph 19 of the Report, the Court observed as under:- “19. It, therefore, appears that whereas under the un-amended 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 expression “in every case” is 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.” 12. The conduct of the petitioner shows that her aim is only to linger on the matter. I have gone through the laws cited by learned counsel for the petitioner. In first citation (Salem Advocate Bar Association’s case), it is held that provisions of Order XVIII Rule 4 C.P.C shall necessarily apply to witnesses brought by the parties without applying for summons and it is not applicable to witnesses who are summoned. In the present case, it is evident from various orders impugned herein, reference of which have been made hereinabove, that petitioner never asked the Court below to issue summons to her witnesses, but Court below has directed the petitioner to produce the affidavits of her witnesses as examination in chief. So this law is of no help to the petitioner. Similarly in another citation (Rita Pandit’s case), it has been held that affidavit of witness cannot be ordered to form part of evidence unless, the deponent thereof entered into the witness box. The facts of said case is quite different to that of present case. Further, in this case also, it has been held that examination in chief has to be conducted by way of affidavits in all cases whether appealable or non-appealable. 13. In view of what has been discussed above, this petition is devoid of merits. Hence, the same is dismissed. The Trial Court shall decide the matter expeditiously.