JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard learned Advocates for the parties.

Perused the records. Rule. By consent, the Rule is made returnable forthwith.

2.The petitioner challenges the order dated 20-8-2002 passed by the City Civil Court, Mumbai in S.C. Suit No. 7280/1998 rejecting the contention of the petitioner that petitioner can produce the evidence of the plaintiff in the form of affidavit under Order XVIII, Rule 4 of C.P.C. The trial Court has held that for the purpose of allowing the parties to produce the evidence in the form of affidavit, the suit must be of the type wherein evidence could be recorded in terms of un-amended Rule 4 of Order XVIII of C.P.C. and not the suit to which Rule 5 of the Order XVIII is applicable. Therefore, the points which arises in this petition are whether Rules 4 and 5 of the Order XVIII prescribes two different methods of recording of evidence and if so, what are those methods? In what circumstances those different methods are to be followed? Whether the provisions of law relating to recording of examination-in-chief in the form of affidavit under Rule 4 apply only to depositions of witnesses and not those of the parties to the suit? Are there any restrictions, to be observed while preparing the affidavit of examination-in-chief of the witness?

3.While challenging the impugned order, drawing attention to various provisions of law contained in Order XVIII of the C.P.C., it was sought to be contended that with the wrong interpretation of the provisions of law contained in Rules 4 and 5 of Order XVIII and considering the real intention of the legislature behind the amendment to the said Rule 4 thereof, on account of impugned order, the very purpose of the amendment has been rendered meaningless. According to the learned Advocate for the petitioner proper reading of Rules 4 and 5 of the said Order XVIII is necessary to give full effect to the intention of the legislature and to expedite the disposal of the cases, the same being the object behind the amendment to Rule 4, the impugned order in the circumstances is contrary to the provisions of law and therefore, warrants interference in writ jurisdiction.

4.On the other hand, referring to the unreported decision of the Rajasthan High Court in Civil Revision Petition No. 750 of 2002 delivered on 2-9-2002 it was submitted by the learned Advocate for the respondents that considering that provisions contained in Order XVIII, Rule 5 apply to the appealable cases within the meaning of the said expression under the said Rule, no fault can be found with the impugned order.

5.The Rule 4 of Order XVIII of the C.P.C. stands amended with effect from 1-7-2002 and the sub-rule (1) and (2) thereof read thus:---

"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 the documents are filed and parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.

(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 either by the Court or by the Commissioner appointed by it.

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit;".

Undoubtedly, bare reading of Rule 4 of Order XVIII discloses that in every case where evidence is required to be recorded, the examination-in-chief of the witness is allowed to be produced in the form of affidavit, with copy thereof to the opposite party to enable the latter to cross-examine the witness. As far as the production of the affidavit of such person on record and the cross-examination by the opponent is concerned, the same is to be recorded either before the Presiding Officer of the

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