( 1 ) THIS matter has come before us on a reference made by a division Bench of this Court vide order dated 19-2-2004. By this order the division Bench recorded that the question involved in the batch of cases was of considerable importance. Prior to this order, an order was passed by the same bench on 3-12-2003 expressing an opinion that there were different views expressed in two decisions of the Supreme Court with regard to interpretation of Order 18 Rule 5 of the Code of Civil Procedure (for short "the Code" ). Those two decisions of the supreme Court are Salem Advocate Bar association, Tamil Nadu v. Union of india, 2002 (6) ALD 34 (SC) = AIR 2003 sc 189 and Ameer Trading Corporation limited v. Shapoorji Data Processing limited, 2004 (1) ALD 34 (SC) = 2003 (1) dt (SC) 1177. First judgment was delivered on 25-10-2002 and the subsequent judgment on 18. 11. 2003. We have heard the learned counsel for the parties and also Mr. Vilas v. Afzulpurkar who was appointed as an amicus curiae to assist this Court. The learned Counsel appearing for the parties have argued the matter in detail. Although the Reference Court has stated that the real scope of Order 18 Rules 4, 5,13 and 19 of the Code has to be gone into the matter, but the real question which has been argued before us is the supposed conflict between rules 4 and 5 of Order 18 of the Code. Rule 4 of Order 18 of the code was substituted by Amendment Act, 1999 and after amending it reads as under:"4. Recording of evidence by Commissioner : (1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. (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 orally by a Commissioner to be appointed by the Court from amongst the panel of Commissioners prepared for this purpose on the same: provided that, in the interest of justice and for reasons to be recorded in writing, the court may direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the Judge. (3 ). . . . . . . . . . (4 ). . . . . . . . . . . (5 ). . . . . . . . . . (6 ). . . . . . . . . (7 ). . . . . . . . . . "before the amendment, this rule read 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. "

( 2 ) RULE 5 was substituted by the amendment Act, 1976 which reads as under:"how evidence shall be taken in appealable cases. 5. In cases 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 typewriter; 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. "

( 3 ) THE contention of the learned counsel is that if it is held that in every case examination-in-chief has to be done by an affidavit, then Rule 5 will be rendered redundant and useless, therefore it is evident that examination-in-chief can be given by affidavits only in those case in which an appeal is not allowed against the final judgment and in cases in which appeal is allowed, the evidence has to be recorded in terms of Rule 5. That means it has to be taken down in writing or in presence and under personal direction or superintendence of the Judge. It is further contended that there is no conflict between rules 4 and 5. Rule 4 applies only to those cases where against the final judgment appeal is not allowed, whereas Rule 5 applies to