The main legal point established in the judgment is the discretion of the court in deciding the manner of recording evidence and the importance of audio recording of the statement of witnesses when evidence is recorded by the commissioner.

( 1 ) THIS order shall govern all the aforesaid petitions.

( 2 ) A question has been referred by the single Bench regarding provisions applicable for recording evidence In a Civil Suit, which is subject matter of appeal, whether provisions of Rule 4 of Order XVIII of the code of Civil Procedure will apply or the provisions as envisaged under Rule 5 will apply to a suit, whose decree is appealable.

( 3 ) COUNSEL appearing for the parties have argued in one voice that Rule 4 of Order XVIII is not applicable to suits where the Judgment of the suit is appealable and submitted that in such cases evidence should be recorded as provided under Rule 5 of Order xviii CPC,

( 4 ) RULE 4 of Order XVIII has been amended by Act No. 22 of 2002, whereby cpc has been amended and the amended code is in force w. e. f. 1st July 2002, It is contended by the counsel for parties that rule 4 of Order XVIII is independent from rule 5 Order XVIII of the Code of Civil Procedure. It is contended by the counsel appearing for the parties that both the provisions are independent of each other,

( 5 ) COUNSEL for petitioners submitted that the question has come up for consideration in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 sc 189. Provisions of Order 18 are considered in Para 18 of the Judgment. In Para 18 it is held as under. "18. In cases where the summons have to be issued under Order 16, Rule 1, the stringent provision of Order 18, Rule 4 may not apply. When summons are issued, the court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in court for his examination. In appropriate cases, the Court can direct the summoned witness to file an affidavit by way of examination-in-chief. In other words, with regard to the summoned witnesses the principle incorporated in Order 18, Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case. "

( 6 ) IN Para 18 the discretion is conferred upon the Courts to decide as to whether evidence of witness shall be taken either by the Court or by the Commissioner. The apprehension of misuse of provisions of Rule 4 was raised and the Apex Court has held that such apprehension is not correct.

( 7 ) IN support of their contention counsel for petitioner have referred Single Bench judgment of the Rajasthan High Court in the case of Laxman Das v. Deoji Mal, AIR 2003 rajasthan 74, wherein it is held that recording of examination-in-chief by way of affidavit cannot be allowed in case where ultimate order is appealable. Single Bench has further held that the expression "in every case" contained in Rule 4 has to be understood in limited sense and does not take in its ambit cases under Rule 5 which provides for recording of evidence by Court.

( 8 ) REFERENCE has been made to Single bench Judgment of Karnataka High Court in the case of Twentieth Century Fox Film corporation v. NRI Film Production Associates (P) Ltd. , AIR 2003 Kar 148 : 2003 AIR kant HCR 418. In this case the Court has considered the scope of Order 18 Rule 4 CPC regarding recording of evidence and use of audio-video link and has laid down the safeguards to be used for examining a witness in terms of audio-vidio link. Reference is made to Single Bench judgment of this court, which is prior to amendment in CPC in the case of Lakme Ltd. v. Plethico Pharma ltd. , 2001 (1) JLJ 387. In this case Court while considering the unamended Rule 4 had deprecated the practice of recording evidence by way of affidavit. It is held that affidavits are generally drafted by the lawyers and they suffer from infirmity of stereotype version. We may mention that this case is prior to amendment in the Code.

( 9 ) COUNSEL for petitioner submitted that the rules should be interpreted in a harmonio