Recording of Evidence--Whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.
Recording of Evidence--Contention that examination-in-Chief of a witness has always to be by way of affidavit to be tendered in Court and no commission could be appointed for recording the same is totally misconceived.

Headnote:(A) Civil Procedure Code, 1908, O.18 R.4--Recording of Evidence--Contention that examination-in-Chief of a witness has always to be by way of affidavit to be tendered in Court and no commission could be appointed for recording the same is totally misconceived.
       Now coming to the issue sought to be raised by learned counsel for the petitioners placing reliance upon Order XVIII Rule 4 CPC that examination-in-chief of a witness has always to be by way of affidavit to be tendered in court, the contention is totally mis-conceived. The answer to the question is provided for in Rule 19 of Order XVIII CPC itself, which begins with a non-obstante clause providing that instead of examining witnesses in open court, the court can direct their statements to be recorded on commission under Rule 4A of Order XXVI CPC. Order XXVI Rule 4A CPC, which also begins with a non-obstante clause, provides that the court may in the interest of justice or for expeditious disposal of a case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise of any person resident within the local limits of its jurisdiction. The statements so recorded shall be read in evidence.
       In the light of provisions of Order XVIII Rule 19 and Order XXVI Rule 4A CPC, it is totally misconceived to contend that statement of a witness has always to be by way of affidavit to be tendered in the court and no commission could be appointed for recording the same. (Para 11 & 12)
       (B) Civil Procedure Code, 1908, O.18 R.4--Recording of Evidence--Whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage. (Para 16)
       (C) Civil Procedure Code, 1908, O.18 R.4--Recording of Evidence--Where the witness has been brought by the party concerned himself, in such cases examination-in-chief is not to be recorded in court but shall be in the form of an affidavit--However, in the cases where summons have been issued under Order XVI Rule 1 CPC, stringent provisions of Order XVIII Rule 4 CPC may not apply as the court can give option to the witness summoned either to file and affidavit by way of examination-in-chief or to be present in court for his examination--In appropriate cases, the court can direct a summoned witness to file his affidavit by way of examination-in-chief. (Para 8)

JUDGMENT

Mr. Rajesh Bindal J.: - Defendants No. 3 and 4 are before this court challenging the order dated 23.1.2012, passed by the learned court below, whereby the application filed by the plaintiffs-respondents No. 1 and 2 for appointment of a Commission for recording the statement of Brig. H. S. Grewal as PW, was accepted.

2. Briefly, the facts of the case are that respondents No. 1 and 2 filed a suit for declaration with the following prayer:

“Suit for declaration that the two transfer deeds dated 30.6.2010 as executed by defendants No. 1 and 2 in favour of defendants No. 3 and 4 respectively, whereby the defendants No. 1 and 2 have transferred their 1/4th share each in House No. 76, Sector 19-A, Chandigarh in favour of defendants No. 3 and 4 respectively, are null and void being violative of clause XIII of registered Sale Deed dated 9.4.1979 and have no effect on the rights of the plaintiffs, who are co-owners to the effect of 1/4th share each in house No. 76, Sector 19-A, Chandigarh with a further stipulation to receive 1/4th share each on the death of their parents i.e. defendants No. 1 and 2 and along with a Decree for joint possession along with Defendants No. 1 and 2 in respect of House No. 76, Sector 19- A, Chandigarh (RP No. 2932).”

3. It is in the aforesaid suit that the plaintiffs filed application for appointment of Local Commissioner for examination of Brig. H. S. Grewal as PW. The application having been allowed by the court below, the order is challenged before this court.

4. Learned counsel for the petitioners submitted that in terms of the provisions of Order XVIII Rule 4 CPC, examination-in-chief of a witness has always to be on affidavit, which has to be filed in court. It is only for the purpose of cross-examination that a Commission can be appointed. In the present case, the witness has not filed his affidavit in court in his examination-in-chief, hence no Commission could be appointed for recording his statement. The order passed by the learned court below being totally in violation of the provisions of law deserves to be set aside. In support of the submissions, reliance was placed upon the judgments of Hon’ble the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(6) SCC 344; a Full Bench of Andhra Pradesh High Court in Rita Pandit v. Atul Pandit, 2005 (2) RCR (Civil) 504 and a Single Bench judgment of Karnataka High Court in Drakshayini v. Gangavva and others, 2005(2) RCR (Civil ) 540.

5. Heard learned counsel for the petitioners and perused the paper book.

6. Though there is no legal infirmity in the order passed and no prejudice as such is going to be caused to the petitioners with the order impugned, however, still considering the fact that the judgments, sought to be relied upon by learned counsel or the petitioners, are not applicable and further the view taken by Karnataka High Court in Drakshayini’s case (supra) on the issue is per incurium and there being no other judgment cited, this court considers it appropriate to deal the matter in dispute in detail.

7. For the purpose of appreciation of the issue raised, reference to various provisions of the Code of Civil Procedure (hereinafter described as “CPC”) would be required. The same are extracted below:

“ Order XVI and Rules 1 and 1A.

ORDER XVI

SUMMONING AND ATTENDANCE OF WITNESS

1. List of witnesses and summons to witnesses.- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, wheth

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2012 Supreme(P&H) 212

2012(3) LAW HERALD (P&H) 2077IN THE HIGH COURT OF PUNJAB AND HARYANABefore The Hon’ble Mr. Justice Rajesh Bindal Civil Revision No. 870 of 2012 (O&M) Abnash Kaur & Anr. v. Surinder Singh Sandhu & Ors. {Decided on 10/02/2012}

Cases Referred (2)

2012(3) LAW HERALD (P&H) 2077
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
Civil Revision No. 870 of 2012 (O&M)
Abnash Kaur & Anr.
v.
Surinder Singh Sandhu & Ors.
{Decided on 10/02/2012}