Back
IN THE HIGH COURT OF BOMBAY
Bar Council of Maharashtra and Goa
Versus
Shamrao Vishnu Kunjir
Decided on,MARCH 10, 2006
R. M. S. KHANDEPARKAR, J.
Civil Procedure Code, 1908 - Order XVIII, Rule 4 Evidence on affidavit Drafting and presentation of To be in accordance with provisions of Civil Procedure Code And procedure prescribed by Supreme Court No direction contrary thereto can be issued by Court.
Civil Procedure Code, 1908 - Order XVIII, Rules 4, 5 and 13 Procedure to be followed in the matter of preparation of affidavits and filing the same in Court as part of evidence of the parties having been laid down in the Code of Civil Procedure as well as in decisions of the Apex Court, High Court cannot issue any directions to the contrary. In 2005(3) Mh LJ 1071, directions were issued in the matter of filing affidavits under provisions of Order XVIII, Rule 4 of the CPC. It was directed that every affidavit under Order XVIII, Rule 4 of the Code of Civil Procedure be prepared by the lawyer for the party, and thereafter transcribed by mechanical process, either with the help of typewriter or with the computer, for the purpose of filing thereof in the Court. It was also directed that the concerned advocate was required to retain copy of the draft affidavit prepared by the advocate on the basis of the information given to him by the concerned deponent till the deponent is discharged in the concerned case by the Court. The said directions having challenged in Letters Patent Appeal by the Bar Council of Maharashtra and Goa.
Held, that neither the Order XVIII nor any other provision in the Code of Civil Procedure, nor the law of evidence in force permits the methodology of preparation of affidavit suggested or directed by the Single Judge in the impugned judgment nor the Oaths Act nor any other statutory provision authorises the advocates, other than the designated Notaries, to administer an oath to any person desiring to make a statement on oath. The provisions of law under Order XVIII, Rule 4 of the Code of Civil Procedure, have been incorporated essentially with a view to simplify the procedure relating to recording of evidence. Bearing the same in mind, it would not be advisable to read in the said provision of law, any procedure which would give rise to duplication of work in relation to the preparation of affidavit or which could create various complications in the course of trial of suit. If the modalities suggested by the Single Judge in the impugned judgment were accepted and followed, it would nullify the very object behind the provision under Order XVIII, Rule 4 of t he Code of Civil Procedure. The preparation of affidavit by an advocate, maintenance of the original draft thereof and the parties right to use such draft in the Court at the time of the cross-examination of the deponent, rather than reducing the Court work in relation to the recording of evidence based on the affidavit filed under Order XVIII, Rule 4 of the Code of Civil Procedure it would not only increase the same but would result in delay in disposal of a suit. The Apex Court in various decisions had held that affidavits have to be prepared in accordance with the rules comprised under Order XIX of the Code of Civil Procedure and the method of filing or placing on record has to be in accordance with the Order XVIII, Rule 4 read with the Rules 5 and 13 thereof in appealable and non-appealable cases respectively. The law being clearly laid down by the Apex Court in this respect, there cannot be any occasion for the High Court to issue any direction contrary to the law laid down by the Apex Court. Hence observations and directions pertaining to the method of preparation of the affidavit and filing thereof under Order XVIII Rule 4 of the Code of Civil Procedure quashed and set aside. 2005(3) Mh LJ 1071 Reversed; 2003(3) BCR 327, 2004(5) All MR (SC) 425, 2005(5) All MR 876 (SC) and 2003(3) Mh LJ 327 : 2003(2) All MR 510 Rel.
Interpretation of Statutes - In the course of interpretation of a statutory provision, the Courts cannot assume the role of Legislature, nor can it appropriate to itself the legislative powers, nor can, under the guise of interpretation, prescribe a procedure different from the one prescribed under the statute.
( 2 ) THIS appeal arises from the judgment and order dated 4th March, 2005 passed by the learned Single judge in Writ Petition No. 9523 of 2004. The appeal is essentially against the part of the impugned judgment which relates to certain observations in relation to the drafting and presentation of the affidavit under order XVIII Rule 4 of the Code of Civil Procedure, 1908 and the directions issued in that regard to the courts and the tribunals.
( 3 ) THE said petition was filed against the order of the trial Court disallowing cross-examination of the deponents, who had filed their affidavits under order XVIII Rule 4 of the Code of Civil Procedure. When the matter came up before the learned Single judge, the advocate appearing on behalf of the respondents conceded that the deponents, who had filed the affidavits, were required to be subjected to cross-examination. In that regard though the petition could have disposed of by consent, the learned Single judge, being of the opinion that the procedure for preparing the affidavits was not being followed in the manner it was required to be followed, proceeded to deal with the said issue and held that the procedure followed in that regard defeats the very purpose for which the provision under Rule 4 has been incorporated in the Order XVIII, under amendment to the Code of civil Procedure in the year 1999 and 2002. The learned Single Judge, therefore, has issued certain directions whereby every affidavit under Order XVIII rule 4 of the Code of Civil Procedure is required to be prepared by the lawyer for the party, and thereafter, to be transcribed by mechanical process, either with the help of typewriter or with the computer, for the purpose of filing thereof in the court, and at the same time the concerned advocate is required to retain copy of the draft affidavit prepared by the advocate on the basis of the information given to him by the concerned deponent till the deponent is discharged in the concerned case by the Court. Aggrieved by these observations and the directions, the appellants have filed the present appeal.
( 4 ) THE challenge is on four counts. Firstly, that the point addressed to and decided by the learned single Judge, did not at all arise for consideration in the matter. Secondly, the observations, based on which the directions are issued, are nowhere in the realm of interpretation of law, and in the process, the learned Single Judge has, in fact, assumed the role of a legislature. Thirdly, the scheme of the amendment Act to the Code of Civil Procedure and particularly in relation to the Order XVIII thereof was a subject matter of scrutiny by the Apex Court on three occasions, and one of the decisions thereof was delivered prior to the impugned order. Fourthly, the procedure suggested is not in consonance with the provisions of law comprised under the Code of Civil procedure in relation to the preparation of affidavit as well as filing thereof in the Court. Attention is sought to be drawn to the decisions of the Apex Court in the matter of Salem Advocate Bar Association and Ors. v. Union of India, reported in 2003 (3) Bom. C. R. 327, ameer Trading Corporation Ltd. v. Shapoorji Data processing Ltd. , reported in 2004 (5) All MR (S. C.) 425, Salem Advocates Bar Association, Tamil Nadu v. Union of India, reported in 2005 (5) ALL MR (S. C.) 876, and of F. D. C. Ltd. v. Federation of Medical representatives and Ors. , reported in 2003 (2) ALL MR 510.
( 5 ) UNDOUBTEDLY, the Writ Petition No. 9523 of 2004 had come up before the learned Single Judge only on account of refusal on the part of the trial Court to permit the petitioner therein to cross-examine the deponents of the respondents, who had filed their affidavits under Order XVIII Rule 4 of the Code. It is a matter of record that the respondents could not defend the impugned order. There is a clear finding in the impugned order, which reads thus:-"at the threshold it may be pointed out
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
