TMI Blog2003 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Kehar Singh Vs. State (Delhi A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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, mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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