The main legal point established in the judgment is the interpretation of the provisions of Order XVIII Rule 4 CPC and Section 12, emphasizing the feasibility of dispensing with the chief examination and the discretion of the court in directing witnesses to file an affidavit or be present in court for examination.

Petitioner is the plaintiff in the suit. O.S.NO.457 of 1995 is filed by him for declaration and for permanent injunction restraining the second defendant from interfering with his possession of the suit properties.

2. At the stage of trial, after the examination of plaintiff's side was completed, the defendant wanted to examine himself. The defendant chose to file an affidavit under Order XVIII Rule 4 CPC(inserted by Act 22 of 2002 with effect from 1.7.2002),by virtue of which, the examination-in-chief of a witness shall be on affidavit .

3.The petitioner objecting to the said course filed a petition under Order XVIII Rule 5 CPC to delete the proof affidavit and to direct the chief examination of the defendant to be taken in the Court. The said application was dismissed by the learned District Munsif, Ambasamudram. . The present Revision is filed against the said order.

4.According to the learned counsel for the petitioner, the amended provision under Order XVIII Rule 4 CPC is a general provision providing for the examination-in- chief of the witness on affidavit. It must give way to the special provision viz. Order XVIII Rule 5 CPC providing that evidence of each witness should be taken down in the presence and under the personal direction of the Judge . Therefore according to him,the order of the learned Judge is unsustainable.

5. By adopting the affidavit procedure, he would not be able to find out the demeanour of the witness and for these reasons, he seeks for setting aside the order and for a direction directing the defendant to be examined in the Open Court.

6.I have heard the learned counsel appearing for the petitioner at length and considered the matter carefully.

7.The unamended provision of Rule 4 of Order XVIII is as follows :

"R.4 Witnesses to be examined in open court.

The evidence of the witnesses in attendance shall be taken orally in the open court in the presence and under the personal direction and superintendence of the judge."

Order XVIII Rule 4 CPC is now substituted and has been made for the purpose of shortening the period of litigation. One of the mode adopted for that purpose is to dispense with the examination-in-chief and in the place of examination, an affidavit is required to be filed, a copy of which shall be given to the opposite party. The provision further says that in any case, where documents are filed and the parties rely upon the documents, proof and admissibility of such documents shall be subject to the orders of the Court. The provision also enables cross examination by the Commissioner appointed by it. The said provision has been introduced in substitution of the then available provision dealing with the taking of evidence. An exception to examination in open court is provided.

8.Order XVIII Rule 5 speaks as to how evidence shall be taken in appealable cases. As per this rule, the evidence of each witness shall be taken in appealable cases in the language of the court in writing, by or in the presence and under the personal direction and superintendence of the Judge. Rule 5 was substituted by the Amendment Act 104 of 1976. Under the old rule, the evidence could be taken down in the language of the court by the judge or in the presence and under the personal direction and superintendence of the judge. It was further provided that the evidence was to be recorded in the form of narrative and after completion, was to be read over in the presence of the judge and the witness and was to be signed by the judge. Under the amended provision, it can also be taken down from the dictation of the judge directly on a typewriter and there is no provision for reading over the evidence and for signing by the judge.

9.Insofar as the amended Rule 4 is concerned, it is seen that after considering the feasibility of dispensing with the chief examination, the Parliament thought it fit to substitute the provision for recording of evidence by affidavit in so far as the examination in chief is concerned. T