ABHILASHA KUMARI, J.

1. Rule. Mr. N.V. Gandhi, learned advocate, waives service of notice of Rule for respondent No. 1. Though served, respondents Nos. 2 and 3 (original defendants Nos. 2 and 3) have not put in an appearance. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

2. The challenge in this petition preferred under Articles 226 and 227 of the Constitution of India, is to the order dated 06.12.2012, passed by the learned Principal Civil Judge, Mandvi, Surat, below the application at Ex.167, in Regular Civil Suit No. 12 of 2007.

3. Briefly stated, the facts, as relevant to the decision of the petition are that, respondent No. 1 (original plaintiff) preferred Special Civil Suit No. 57 of 1990, before the Civil Court, Mandvi, challenging a registered will dated 06.09.1973, made by deceased Jatariyabhai Chandiyabhai, who died on 13.10.1989, in favour of the predecessor of the petitioners (original defendant No. 1). According to the petitioners, they are in possession of the land in question and are cultivating it. After the division and allocation of District Surat, the suit has been renumbered as Regular Civil Suit No. 12 of 2007. Issues were framed and the suit was listed for evidence. According to the petitioners, as per Rule 5 of Order 18 of the Code of Civil Procedure, 1908 (the Code for short), the Court ought to take evidence by way of oral deposition in appealable cases, and not by filing an affidavit. The petitioners, who are the legal heirs of original defendant No. 1, made an application at Ex.167 under the provisions of Rule 5 Order 18 of the Code, to the effect that Rule 5 Order 18 has overriding effect over Rule 4 Order 18; therefore, instead of taking the deposition on affidavit, the Trial Court may take the deposition of the plaintiff by way of examination-in-chief. The said application has been rejected by the Trial Court by the impugned order, giving rise to the present petition.

4. Mr. P.Y. Divyeshwar, learned advocate for the petitioners, would submit that Rule 4 of Order 18 and Rule 5 of Order 18 should be read harmoniously. If so read, it would emerge that Rule 4 of Order 18 would have no application in appealable cases. As a logical corollary thereof, it is incumbent upon the Trial Court to permit the examination of all the witnesses in the Court in appealable cases that fall under the provisions of Rule 5 Order 18 of the Code. It is submitted that the Trial Court has misinterpreted and misapplied the said two provisions of law by arriving at the erroneous conclusion that it is specifically provided under Rule 4 of Order 18 that the examination-in-chief in every case shall be on affidavit and that the said provision of law does not make any distinction between appealable and non appealable cases in this respect.

On the above grounds, it is prayed that the impugned order passed by the Trial Court be quashed and set aside.

5. On the other hand, Ms. Falguni Bhagat, learned advocate for Mr. N.V. Gandhi, learned advocate for respondent No. 1, has opposed the submissions advanced on behalf of the petitioners by contending that the provisions of Order 18 Rule 4 of the Code specify that in every case the examination-in-chief of a witness shall be on an affidavit. It does not make any distinction between appealable and nonappealable cases. Order 18 Rule 5, which applies only to appealable cases, lays down the manner in which evidence is to be taken in such cases. It nowhere states that the requirement of the examination-in-chief of a witness on an affidavit shall be dispensed with. It is submitted that the impugned order of the Trial Court reflects the correct position of law and as no illegality or irregularity has been committed while passing the said order, this Court may not exercise its supervisory jurisdiction.

6. In support of the above submissions, reliance has been placed upon