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High Court Of Calcutta
PINAKI CHANDRA GHOSH, PRAVENDU NARAYAN SINHA
HOWRAH MOTOR COMPANY LIMITED - Appellant
Versus
EXIDE INDUSTRIES LIMITED - Respondent
C. S. 392 Of 1999
Decided On : 05/19/2005
EVIDENCE ACT - SECTIONS 135, 138 - HIGH COURT RULES (ORIGINAL SIDE), CHAPTER 14 - C. P. C. ORDER 18 RULE 4 - ORIGINAL SIDE RULES PREVAIL OVER C. P. C. PROVISIONS - EXAMINATION-IN-CHIEF BY AFFIDAVIT NOT PERMITTED UNDER ORIGINAL SIDE RULES - DIRECTION TO FILE SUPPLEMENTARY AFFIDAVIT ERRONEOUS - ORDER SET ASIDE.
Fact of the Case:
The plaintiff/respondent filed an affidavit by way of examination-in-chief before His Lordship Arunava Barua, J. who fixed a date for cross-examination. The defendant did not prefer an appeal from the said order. The defendant/appellant challenged the filing of affidavit by the plaintiff/respondent's first witness by way of examination-in-chief.
Finding of the Court:
1. Original Side Rules prevail over C. P. C. provisions in case of conflict. 2. Examination-in-chief by affidavit not permitted under Original Side Rules. 3. Direction to file supplementary affidavit erroneous. 4. Order set aside.
Issues: 1. Whether the Original Side Rules prevail over the C. P. C. provisions in case of conflict? 2. Whether examination-in-chief by affidavit is permitted under the Original Side Rules? 3. Whether the direction to file a supplementary affidavit was erroneous?
Ratio Decidendi: 1. The High Court Rules (Original Side), Chapter 14, specifically deal with the procedure for recording of evidence adduced by witnesses in the course of trial of a suit. This field is occupied by subsisting High Court Rules. 2. The Rule so long it subsists excludes the application of the provisions of the Code of Civil Procedure, which provides examination-in-chief of witnesses by way of filing affidavits. 3. The order directing the plaintiff/respondent to file a supplementary affidavit in respect of the witness who had already filed his examination-in-chief by way of affidavit is erroneous.
Final Decision: The appeal is allowed. The impugned order is set aside. The Hon'ble First Court is directed to follow the age-old practice of the Original Side as specifically provided in Chapter 14 of the Original Side Rules.
Key Points: - In case of a conflict between the C. P. C. and the High Court Rules of a Chartered High Court, the Rules will prevail (!) (!) . - Examination-in-chief by affidavit is not permitted under the Original Side Rules of the High Court (!) (!) (!) (!) . - The Original Side Rules, specifically Chapter 14, govern the procedure for recording evidence (!) (!) (!) . - The amended provisions of the C. P. C., such as Order 18 Rule 4, are excluded by the subsisting High Court Rules on the Original Side (!) (!) (!) . - A direction to file a supplementary affidavit for examination-in-chief is erroneous (!) (!) . - The practice of filing affidavits for examination-in-chief prevents the court from observing the demeanor and body language of the witness (!) . - The impugned order directing simultaneous filing of examination-in-chief by affidavits for all witnesses of both plaintiff and defendant is impermissible and contrary to practice (!) (!) (!) . - Defendants have the right to decide which witnesses to call after the plaintiff's cross-examination is complete, and are not prejudiced by being forced to disclose their evidence beforehand (!) (!) (!) . - The appeal was allowed, and the impugned order was set aside, directing the court to follow the age-old practice of the Original Side as provided in Chapter 14 of the Original Side Rules (!) (!) . - The Supreme Court has upheld the principle that Chartered High Courts are governed by their own Rules on the Original Side, even after amendments to the C. P. C. (!) (!) (!) (!) (!) .
( 1 ) THIS is an appeal filed by the defendant/appellant in respect of an order 20th January, 2005. The said order contains the following directions - (i) The plaintiff/respondent given liberty to file a Supplementary affidavit in respect of the witness who had already filed his examination-in-chief by way of affidavit. (ii) The plaintiff has been directed to file further Affidavit Evidence in respect of other witnesses proposed to be called by the plaintiff. (iii) The defendant/appellant has been given liberty to file their affidavit Evidence in similar fashion within two weeks thereafter even before the cross-examination of the first witness is complete.
( 2 ) MR. Chowdhury, learned senior Advocate appears on behalf of the appellant/defendant submitted that each and every direction is erroneous and is liable to be set aside by reason of the direction being contrary to the high Court Rules, (Original Side), the Evidence Act and the Code of Civil procedure. The directions are inconsistent with recognized principles of fair trial of a suit, in the Original Side of this Hon'ble Court.
( 3 ) HE drew our attention to Chapter 14 of the High Court Rules (Original Side) which deals with "proceedings at the hearing of suits : Record of Evidence".
( 4 ) RULE 1 of Chapter 14 provides that upon the hearing of any suit or matter in Court or before a Judge the evidence of each witness shall be taken down by or in the presence and under the superintendence of the judge or one of the Judges. Such evidence shall be taken down in a narrative form when in long-hand, and in the form of question and answer, when in short-hand, by such officers of the Court as may be appointed for the purpose and shall form part of the record. The transcript of the short-hand note so taken shall. be signed by the officer recording the note and be deemed the deposition of the witness and shall also form the part of the record.
( 5 ) IT is, therefore, clear that there are specific Rules expressly and specifically dealing with the procedure for recording of evidence adduced by witnesses in course of trial of a suit. This field is occupied by subsisting high Court Rules.
( 6 ) THE Rule so long it subsists excludes the application of the provisions of the Code of Civil Procedure, which provides examination-in-chief of witnesses by way of filing affidavits.
( 7 ) HE also drew our attention to Order 18 Rule 4 of the Civil procedure Code (hereinafter referred to as 'c. P. C. ') which has been introduced in the amended C. P. C. with effect from 1 st July, 2002. It provides for examination-in-chief by way of filing an affidavit. It is submitted that this rule cannot be applied to the Original Side of the Calcutta High Court so long the Rules contained in Chapter 14 of the High Court Rules subsist, the operation of the amended provision of the C. P. C. is excluded by the specific high Court Rules.
( 8 ) HE further submitted that Order 18 Rule 4 cannot and should not have any application in suits tried by a Single Judge of the Original Side of the High Court because the provision contained in this Rule is inconsistent with the specific Rule relating to the recording of evidence at the hearing of the suit.
( 9 ) HE also drew our attention to Section 135 of the Evidence Act, which provides that the order in which witnesses are produced and examined, shall be regulated by the law and practice for the time being relating to Civil and Criminal Procedures respectively, and in the absence of any such law, by the discretion of the Court Since there is a specific Rule relating to the recording of evidence by a witness, the question of Lordship any discretion by the Court cannot arise.
( 10 ) IT is well settled that whenever there is a conflict between a provision in the C P C and High Court Rules of a Chartered High Court, the rules will prevail In AIR 1954 Cal 369 (Shaw and Co v. B. Shamaldas and Co ). His Lordship P. B. Mukharji, J (as His ordership then was) obs
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