Re-examination of a witness must be conducted orally in court or by a commissioner, not through an Affidavit, as per the Code of Civil Procedure.

1) Rule. Rule, made returnable forthwith. With the consent of the parties, petition is taken up for final disposal.

2) The procedural impropriety highlighted in the present petition is to permit the Plaintiffs to conduct re-examination of P.W.1 by filing Affidavit in-lieu of re-examination instead of conducting re- examination by examining the said witness in the Court. There is no dispute to the position that by virtue of judgment and order dated 12 January 2024 passed by this Court in Writ Petition No. 1534 of 2022, Plaintiffs have been permitted to re-examine P.W.1. It appears that before passing of the judgment and order dated 12 January 2024, in anticipation of grant of re-examination of P.W.1, Affidavit in-lieu of re- examination of P.W.1-Satish Dhirajlal Vithalani was already filed in the Court. The only issue that needs consideration in the present petition is whether re-examination of a witness can be conducted by permitting such witness to file Affidavit in-lieu of re-examination. Order 18 Rule 4 of the Code deals with recording of evidence and provides thus : O18. R.4 (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 alongwith 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 :

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit :

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically, in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination :

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of rules 16, 16-A, 17 and 18 of Order XXVI in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.]

3) Thus, under sub-rule (1) of Order 18, examination-in-chief of every witness must be on Affidavit. However, when it comes to cross- examination and re-examination of the witness who has filed Affidavit of examination-in-chief, the same has to be necessarily taken either by the Court or by the Commissioner appointed by it. There is no provision in the Code which permits filing of Affidavit-in-lieu of examination by a witness. Legislature has made conscious distinction between examination-in-chief on one hand and cross-examination and re- examination on the other in sub-rule (2) of Rule 4 of Order 18. It specifically provides that witness whose evidence (examination-in-chief) is recorded by Affidavit, his/her cr