1. By invoking jurisdiction of this Court under Article 227 of the Constitution, the petitioner/plaintiff has called in question the legality, validity, correctness and propriety of the order dated 7.8.2013, whereby the Court below has directed the petitioner to depose the statement by way of examination in chief in the Court and the affidavit filed under Order 18 Rule 4 of the Code of Civil Procedure (CPC) is discarded.

2. The petitioner filed a suit for declaration and permanent injunction. The said suit was registered as Case No. 10A/2013 before the Fourth Additional District Judge, Bhind. In the proceedings of the said suit, the petitioner filed affidavit of its witness Keral Singh Yadav under Order 18 Rule 4, CPC. Plaintiff also filed his own affidavit under Order 18 Rule 4 CPC. The Court below by examining this affidavit opined that affidavit is running in seven pages. Prima facie affidavit appears to have been prepared by somebody else or by an Advocate. In this view of the matter, the Court below opined that in the interest of justice the plaintiff be directed to enter the witness box and his statement will be recorded in the Court. Aggrieved by this order, the present petition is filed.

3. Shri Rohit Jagwani, learned counsel for the petitioner submits that after the amendment in the CPC, it is obligatory on the part of the Court below to record the statement of the witnesses by way of accepting affidavits under Order 18 Rule 4 CPC and Court below has erred in rejecting the same.

4. Prayer is opposed by Shri D.D.Bansal, learned counsel for the respondent No.1. Shri Bansal relied on para 18 of the judgment, reported in 2003 (1) JLJ 171 (SC) = AIR 2003 SC 189 (Salem Advocate Bar Association v. Union of India). He further submits that there is no legal error in the order passed by the Court below and, therefore, no interference is required.

5. I have bestowed my anxious consideration on the rival contentions.

6. Before dealing with the contentions, it is apt to quote the relevant provisions which are relevant in this matter.

7. Order 16 Rule 1 and Rule 1-A of CPC read as under:-

“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, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).

1A. Production of witnesses without summons.— Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.”

Order 18 Rule 4(1) of CPC reads as under :-

“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 Cou