2002 Supreme(Bom) 276
IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
R.N. Engineer others .... Petitioners.
Versus
Kaushik H. Desai others.... Respondents.
Writ Petition No. 569 of 2001, decided on 16-3-2002.
Advocates appeared :
R.S. Govilkar, i/b. Mulla Mulla, for petitioner.
Mrs. Gauri Jadhav, for respondent Nos. 1 2.
Headnote:Civil Procedure Code, 1908 - Order XIX, Rules 1 and 2 - Evidencing on affidavit - Deponent allowed to be cross-examined - Plea that if re-examination is allowed he should not be allowed to evidence - Held - Plea not sustainable - To cut short period of trial evidence on affidavit can be allowed subject to cross-examination of deponent - As there is no alternative procedure Court has to use only existing procedures to reduce backlog and Order XIX, CPC is such procedure with Courts - Registrar of Court directed to forward copy of judgment to all Tribunals under jurisdiction of Bombay High Court and also to State of Maharashtra, Goa, Union territories of Daman and Diu. - It is clear that there is power in the Court to permit evidence to be lead on affidavit. Needless to say that the power must be exercised in a manner set out in the order. It is therefore, necessary first to consider Order XIX, Rule 1. The rule provides that any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. The first part therefore, is a power conferred on the Court for sufficient reasons that any fact or facts may be proved by affidavit. Alternately that the affidavit of any witness may be read at the hearing on such condition as the Court thinks reasonable. Both are subject to the proviso, that when it appears to the Court that either party bona fide desires production of witness for cross-examination and that such witness can be provided, no order shall be made authorizing evidence of such witness to be given by affidavit. All that means is that the affidavit by itself is not considered as evidence. That will be subject to the cross-examination. If that be the case, all that happens is that the Court cannot permit affidavit by itself to be read at the hearing. Under sub-rule (2) of Order XIX in the event any application is moved, the Court may direct the evidence to be given on affidavit but the Court may at the instance of either party order his attendance for cross-examination. Under Rule 3 it is specifically set out that the contents of the affidavit must be confined to such facts that the deponent s own knowledge except on interlocutory applications in which statement of belief may be admitted provided that the grounds thereof are stated. Subsequent to that judgment, Industrial Tribunals have been following the procedure of permitting evidence to be led on affidavits and cross-examination of the deponents. There is reason why this observation of the Apex Court should not be carried and be made applicable to proceedings before all Tribunals and quasi judicial authorities where enquiries have to be held and evidence to be led. As long as deponent is made available for cross-examination, the opponents would not be prejudiced as the aim of justice is to elicit truth by cross- examination. Section 73 of the Bombay Public Trust Act, 1950 specifically provides that in holding enquiries under this Act the officer holding the same shall have same powers as are vested in the Courts under Civil Procedure Code, 1908 in trying the suit amongst others to prove all facts by affidavit. It is true that in affidavit by itself is not evidence being excluded by Section (1) of the Indian Evidence Act. However, Order XIX of CPC provides that the affidavits can be read in evidence if the test set out in Order XIX are satisfied. Order XIX can be resorted to both in interlocutory proceedings as a matter of course as also in conducting proceedings itself. Sufficient reasons under Order XIX, Rule (1) will include within its ambit the back log pendency of matters before Courts and Tribunals. The judgments of this Court which were referred to earlier had no occasions to consider this aspect of the matter nor was it in issue before the said Courts. Therefore, though the said judgments are judgments of Co- ordinate Benches of this Court, those judgments are on the facts of those cases. The issue which has been considered for giving effect to Order XIX, Rule 1 by Tribunals and quasi judicial authorities was not in issue before the Judges of this Court.
JUDGMENT - REBELLO F.I., J.:---The petitioners along with respondent Nos. 3 and 4 are the opponents in application being Change Report No. 591 of 1999 pending before the learned Assistant Charity Commissioner, Greater Mumbai, Region Mumbai. Respondent No. 1 is the original applicant. There is a body known as Institution of Mechanical Engineers (India) Registered Society. The society is bound to hold its annual general body meeting in terms of memorandum, constitution and bye-laws. It is alleged that the respondent No. 1 had convened annual general body meeting on 30-8-1999 at Delhi. The registered office/head quarters of the Institute of the Mechanical Engineers (India) is situated at Mumbai.
The petitioners herein had filed a Suit No. 5260 of 1999 in Bombay City Civil Court at Mumbai to restrain respondent No. 1 from holding annual general body meeting on 30-8-1999. The Civil Court rejected the petitioners application and allowed the meeting to be convened. The appeal preferred against the said order before this Court being Appeal No. 1045 of 1999 was rejected. The meeting did take place on 30-8-1999. Based on the meeting held, a change report was filed to which petitioners herein filed objections on 22-3-2000. The proceedings were kept for recording evidence. On 2-11-2000, it is the case of the petitioners, that respondent No. 1 submitted an affidavit in lieu of oral evidence and before any submissions could be made, Assistant Charity Commissioner relied on observations in the earlier order dated 2-11-2000 which is reproduced here below:
"Affidavit filed in lieu of oral evidence. Dependent not present. Learned Advocate Shri K.P. Jadhav not present. The Junior Advocate holding for him. Learned Advocate Bipin Shukla representing M/s. Mulla Mulla present. Opponent to Cross Examine Mr. Kaushik Desai, adjourned till 4-12-2000. "
It is the case of the petitioners that their Advocate objected to the order directing petitioners to cross-examine respondent No. 1 as there was no application on the part of respondent No. 1 seeking permission by giving justification or giving sufficient reasons as to why affidavit should be allowed to be tendered in lieu of the oral evidence. The case of the petitioners is that they had no opportunity to oppose the affidavit taken on record. On 2-11-2000 an application was moved on behalf of the petitioners that the reporting trustee be directed to examine himself and lead evidence and should not be permitted to lead evidence by filing affidavit. That application came to be disposed of by order dated 21-11-2001. It is that order which is impugned before this Court.
2. At the hearing of the petition, on behalf of the petitioners, it is contended as under:
(a) That the order to grant permission to lead evidence on affidavit in the present case did not fall under Order 19, Clause 1 and fell under sub-clause (2) of Order 19 of C.P.C. Under Order 19, Rule 2 of C.P.C. the Court may at any time upon an application take any evidence by way of affidavit. Respondent No. 1 applicant had not taken out any such application. Respondent No. 2 in passing an order directing affidavit evidence to be tendered, therefore, acted without jurisdiction.
(b) It is contended that merely because cross-examination of the affiant is permitted would not be a ground to permit leading of oral evidence as Rule 1 of Order 19 specifically provides that in case either party desires to cross-examine witnesses, in lieu of oral evidence no order shall be made authorizing such witness to lead evidence by affidavit.
It is further submitted that the power to permit evidence on affidavit is covered under Rule 1 and that the provisions of Rule 2 of Order 19 are additional provisions and have to be read together and cannot be read in isolation or independently.
At the hearing of the petition, on behalf of the petitioners, learned Counsel has relied on various judgments. Apart from those judgments as the matter was reserved for judgment other ma
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