IMPORTANT POINT
Order 18 Rule 4 and 5 are required to be harminously construed and Rule 5 can not be read as an exception to Rule 4.

JUDGMENT

S.B. Sinha, J.-Leave granted.

2. 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.

3. 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.

4. 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 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."

5. 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."

6. The appellant is in appeal before us aggrieved thereby.

7. 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].

8. 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-C