Scope and applicability of order 18, Rule 4(1) of Code of Civil Procedure Amendment Act, 2002.

The revision petitioner is the defendant. The respondent/plaintiff, who is none other than the brother of the defendant, filed the suit in O.S.No.277 of 1999 on the file of the Subordinate Judge, Gudiyatham, for an injunction against the defendant to restrain him from interfering with the business of the plaintiff. The trial commenced on 21.10.2002. The plaintiff filed an affidavit of proof with certain documents, for which the defendant ought to have cross examined the plaintiff. At that stage, the defendant filed a memo stating that as the amended Code of Civil Procedure is prospective and not retrospective, the plaintiff should have been examined in Court rather than the Court directs him to file an affidavit as evidence in chief examination on the ground that the defendant will lose his chance of opposing marking of document and copies thereof has also not been furnished as per the C.P.C. Amendment Act 22 of 2002. The learned Subordinate Judge dismissed the memo on the ground that under Order 18 Rule 4 (1), in all cases, chief examination of all the witnesses will be by way of an affidavit along with the documents to be filed and such witnesses shall be cross-examined by the opposite party either in the Court or by a Commissioner appointed by the Court. Aggrieved over the said order, this revision petition has been filed by the defendant.

2. The learned Counsel appearing for the revision petitioner/defendant would contend that the amended Code of Civil Procedure came into force only on 01.07.2002 and therefore, it is only prospective and the amended Code of Civil Procedure is applicable only to the cases filed after 01.07.2002 and not to the cases filed earlier.

3. The learned Counsel appearing for the respondent/plaintiff would contend that the procedure laid down under amended Code of Civil Procedure is applicable to all the pending cases irrespective of the fact that whether the suits were filed earlier than 01.07.2002 or later.

4. The very purpose for which the C.P.C. Amendment Act 22 of 2002 has been enacted is for a laudable object, i.e., early disposal of the cases which are pending disposal for several years. Order XVIII of CPC deals with the hearing of suit and examination of witnesses. The relevant provisions of Order XVIII Rule 4 as substituted by Act No.22 of 2002 read as follows:-

"4. Recording of evidence

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the commissioner appointed by it."

This provision clearly shows that in every case the examination-in-chief of a witness shall be on affidavit and cross-examination can be at the discretion of the Court either by the Court or by the commissioner appointed by it.

However, Order XVIII Rule 5 which has been retained by the legislature reads thus:

"5. How evidence shall be taken in appealable cases

In cases in which an appeal is allowed, the evidence of each witness shall be.-

(a) taken down in the language of the Court--

(i) in writing by, or in the presence and under the personal dictation and superintendence of, the judge; or

(ii) from the dictation of the judge directly on a typewriter; or

(b) if the judge, for reasons to be recorded, so directs recorded mechanically in the language of the Court in the presence of the judge."

5. On one hand, the provision under Order 18, Rule 4 as substituted by Act 22 of 2002 mandates the examination-in-chief of witness in every case by affidavit and the cross-examination and re-examinat