JUDGMENT F.I. Rebello, J.
1. The petitioners along with respondent Nos. 3 and 4 are the opponents in application being Change Report No. 591 of 1999 pending before the learned Assistant Charity Commissioner, Greater Mumbai, Region Mumbai. Respondent No. 1 is the original applicant. There is a body known as Institution of Mechanical Engineers (India) Registered Society. The society is bound to hold its annual general body meeting in terms of memorandum, constitution and bye-laws. It is alleged that the respondent No. 1 had convened annual general body meeting on 30-8-1999 at Delhi. The registered office/head quarters of the Institute of the Mechanical Engineers (India) is situated at Mumbai.
The petitioners herein had filed a Suit No. 5260 of 1999 in Bombay City Civil Court at Mumbai to restrain respondent No. 1 from holding annual general body meeting on 30-8-1999. The Civil Court rejected the petitioner's application and allowed the meeting to be convened. The appeal preferred against the said order before this Court being Appeal No. 1045 of 1999 was rejected. The meeting did take place on 30-8-1999. Based on the meeting held, a change report was filed to which petitioners herein filed objections on 22-3-2000. The proceedings were kept for recording evidence. On 2-11-2000, it is the case of the petitioners, that respondent No. 1 submitted an affidavit in lieu of oral evidence and before any submissions could be made, Assistant Charity Commissioner relied on observations in the earlier order dated 2-11-2000 which is reproduced here below:
"Affidavit filed in lieu of oral evidence. Dependent not present. Learned Advocate Shri K.P. Jadhav not present. The Junior Advocate holding for him. Learned Advocate Bipin Shukla representing M/s. Mulla & Mulla present. Opponent to Cross Examine Mr. Kaushik Desai, adjourned till 4-12-2000."
It is the case of the petitioners that their Advocate objected to the order directing petitioners to cross-examine respondent No. 1 as there was no application on the part of respondent No. 1 seeking permission by giving justification or giving sufficient reasons as to why affidavit should be allowed to be tendered in lieu of the oral evidence. The case of the petitioners is that they had no opportunity to oppose the affidavit taken on record. On 2-11-2000 an application was moved on behalf of the petitioners that the reporting trustee be directed to examine himself and lead evidence and should not be permitted to lead evidence by filing affidavit. That application came to be disposed of by order dated 21-11-2001. It is that order which is impugned before this Court.
2. At the hearing of the petition, on behalf of the petitioners, it is contended as under:
(a) That the order to grant permission to lead evidence on affidavit in the present case did not fall under Order 19, Clause 1 and fell under sub-clause (2) of Order 19 of C.P.C. Under Order 19, Rule 2 of C.P.C. the Court may at any time upon an application take any evidence by way of affidavit. Respondent No. 1 applicant had not taken out any such application. Respondent No. 2 in passing an order directing affidavit evidence to be tendered, therefore, acted without jurisdiction.
(b) It is contended that merely because cross-examination of the affiant is permitted would not be a ground to permit leading of oral evidence as Rule 1 of Order 19 specifically provides that in case either party desires to cross-examine witnesses, in lieu of oral evidence no order shall be made authorizing such witness to lead evidence by affidavit.
It is further submitted that the power to permit evidence on affidavit is covered under Rule 1 and that the provisions of Rule 2 of Order 19 are additional provisions and have to be read together and cannot be read in isolation or independently.
At the hearing of the petition, on behalf of the petitioners, learned Counsel has relied on various judgments. Apart from those judgments as the matter was reserved for judgment other material and authorities which have come to my notice have also been considered.
3. To appreciate the contention it may be necessary to reproduce Order 19(1):
1. Power to order any point to be proved by affidavit.-Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable;
"Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit."
It is therefore, clear that there is power in the Court to permit evidence to be lead on affidavit. Needless to say that the power must be exercised in a manner set out in the order. It is therefore, necessary first to consider Order 19, Rule 1. The rule provides that any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. The first part therefore, is a power conferred on the Court for sufficient reasons that any fact or facts may be proved by affidavit. Alternately that the affidavit of any witness may be read at the hearing on such condition as the Court thinks reasonable. Both are subject to the proviso, that when it appears to the Court that either party bona fide desires production of witness for cross-examination and that such witness can be provided, no order shall be made authorizing evidence of such witness to be given by affidavit. All that means is that the affidavit by itself is not considered as evidence. That will be subject to the cross-examination. If that be the case, all that happens is that the Court cannot permit affidavit by itself to be read at the hearing.
Under sub-rule (2) of Order 19 in the event any application is moved, the Court may direct the evidence to be given on affidavit but the Court may at the instance of either party order his attendance for cross-examination. Under Rule 3 it is specifically set out that the contents of the affidavit must be confined to such facts that the deponent's own knowledge except on interlocutory applications in which statement of belief may be admitted provided that the grounds thereof are stated.
It is therefore, clear that the power of the Court to order evidence to be recorded is either suo motu, or on the application of the party. Excepting those cases like interlocutory applications, the evidence is on affidavit. In other cases where the party desires cross-examination of the deponent, the affidavit evidence can be considered provided the deponent is made available for cross-examination. The same has to be resorted to in the public interest as it will at least cut down the period of trial where examination-in-chief is also led by examination of the witnesses. The courts and Tribunals are burdened with heavy back log of matters. Permitting evidence to be led on affidavit subject to cross-examination will result in shortening the trial process and enable the Tribunal and courts to dispose of the matters at the earliest. At least to my mind, public policy as it exists today will so require the rule to be read. The procedural powers are to further the cause of justice. The delay in disposing of proceedings is itself injustice. In the absence of alternative procedure becoming available, the courts have to use the existing legislation to reduce not only the back log of matters but also the time needed to dispose of the matter. Order 19 to my mind is one such provision which the Court must as a matter of course and more specially Tribunals must resort to further the cause of justice. Before proceeding to consider the judgment relied upon on behalf of the petitioners, let me advert to what the Apex Court said in the matter of leading evidence before the Industrial Tribunal as set out in Khandesh Spinning and Weaving Mills Co. Ltd., Jalgaon v. Rashtriya Girni Kamgar Sangh, Jalgaon, . The Apex Court observed as under:
"A combined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the courts, subject to the conditions laid down under Order XIX, may ask particular fact or facts to be proved by affidavits. The Industrial Courts may conveniently follow the said procedure. In view of the importance of the item or rehabilitation in the matter of arriving at the surplus for fixing the bonus, principles of equity and justice demand that Tribunals should weigh with great care the evidence adduced by the management as well as by the labour to ascertain every sub item that goes into or is subtracted from the item of rehabilitation. If the parties agree, agreed figure can be accepted. If they agree to a decision on affidavits, that course may be followed. But in the absence of an agreement, the procedure prescribed in Order XIX of the Code of Civil Procedure may usefully be followed by the Tribunals so that both the parties may have full opportunity to establish their respective cases."
4. Subsequent to that judgment, Industrial Tribunals have been following the procedure of permitting evidence to be led on affidavits and cross-examination of the deponents. I see no reason why this observation of the Apex Court should not be carried and be made applicable to proceedings before all Tribunals and quasi judicial authorities where enquiries have to be held and evidence to be led. As long as deponent is made available for cross-examination, the opponents would not be prejudiced as the aim of justice is to elicit truth by cross-examination. Section 73 of the Bombay Public Trust Act, 1950 specifically provides that in holding enquiries under this Act the officer holding the same shall have same powers as are vested in the courts under C.P.C. 1908 in trying the suit amongst others to prove all facts by affidavit. It is true that in affidavit by itself is not evidence being excluded by section (1) of the Indian Evidence Act. However, Order 19 of C.P.C. provides that the affidavits can be read in evidence if the test set out in Order 19 are satisfied. Order 19 can be resorted to both in interlocutory proceedings as a matter of course as also in conducting proceedings itself.
With the above we may consider two judgments relied upon on behalf of the petitioners to contend that the order of the Assistant Charity Commissioner does not comply with requirements either of Order 19, Rule 1 or Rule 2. In S.K. Palajiappah Kandaiswami Gonder and another v. Superintending Engineer, M.S.E.B. Karad and another, the issue before, the learned Single Judge was order issued by the Motor Claims Tribunal permitting the parties to lead evidence by affidavit under Order 19, Rule 1 of C.P.C. On considering facts in that case, a learned Single Judge held that in passing the order to lead evidence on affidavit, sufficient reasons have to be given or recorded under Order 19, Rule 1 of C.P.C. In that case, further contention was that no opportunity was given to the parties by the Tribunal to address it on the question of requirement of Order 19, Rule 1 as well as proviso to Rule 1. On the facts of that case, the Court held that the jurisdiction had not been properly exercised and set aside the order.
Another learned Single Judge in Namdev Laxman Nawale v. Chandrasen Khashiram Rajeshirke and others, 2001(Supp.) Bom.C.R. 323 : 2001(2) Mh.L.J. 941 was considering the matter under Bombay Rents Hotels Act. In that case, the trial Court had grated permission to prove subject claim by way of affidavit without any leave been sought in that behalf. The suit was dismissed. Appeal was allowed and that was challenged by way of writ petition. The learned Judge observed that the permission to lead evidence in the form of affidavit cannot be granted mechanically and unless there are sufficient reasons to grant such relief.
5. For the purpose of understanding as to why public policy requires use of Order 19 more effectively. I may advert to some figures available to this Court in the matter of pendency of matters.
-----------------------------------------------------------------------
Name of the Court Total pendency Years required for
as on disposal considering
31-8-2001 the present strength
----------------------------------------------------------------------
1. City Civil & Sessions
Court, Greater Mumbai. 45785 9
2. Court of Small
Causes, Mumbai. 65090 9
3. Industrial Court,
Mumbai. 9371 15
4. Labour Courts,
Mumbai. 22974 14
5. M.A.C.T. Mumbai 35372 42
6. Family Court,
Mumbai. 8004 9
--------------------------------------------------------------------------
These figures as set out are only for the district of Mumbai.
The legal system exists not only to conduct and dispose of proceedings but the larger aim is to maintain the faith of the people in rule of law. The Judges strength ratio is inadequate. The executive does respond either by creation of additional vacancies or additional courts. They have also not brought about any structural changes by enacting suitable legislation. Though most States have set up law commissions at least no radical steps have been taken to speed up the disposal of the matters. It is in these circumstances that the courts must make adequate use of the procedural provisions available, to at least cut down the procedural steps and to ensure speedy trial. Dispensing of examination in chief by oral evidence is one such step which will save valuable judicial time. The opponent on the other hand will also not be adversely affected as the witnesses in all cases will be available for cross-examination. Justice will be vindicated if we can expedite the judicial process as existing today. Courts have been from time to time responding by making provision enforceable or casting new light on them. As pointed out earlier in Khandesh (supra) the Apex Court had given effect to the clear instinct of Order 19. Unfortunately, only Industrial Tribunals have taken note of it and not other Tribunals and quasi judicial forums.
6. As noted in the earlier part of the discussion though reading of Order 19, Rule 1 would indicate that the Court can permit on giving sufficient reasons evidence on affidavit. Sufficient reasons can be interpreted to mean pendency of arrears in courts. Sufficient reasons therefore, need not necessarily be sufficient reasons on the facts of the particular case. Sufficient reasons considering workload of the courts and the huge arrears can be judicially recognized by this Court as sufficient reasons. The High Court of the State has power of superintendence over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This includes calling for reports of the said courts and making and assigning general rules, prescribing forms for regulating the practice and proceedings of said courts and other matters as set out therein. It is therefore, clear that it is open to the High Court to issue directions at least in those matters where the provisions of C.P.C. are made applicable to Tribunals or quasi judicial bodies. In so far as Bombay Public Trust Act, 1950 is concerned, section 73 specifically so provides. Section 73 at least as it exists in State of Maharashtra so provides. I therefore, find no difficulty in holding that the courts and Tribunals under Order 19, Rule 1 can permit parties to lead evidence on affidavit in examination-in-chief.
As explained, sufficient reasons under Order 19, Rule (1) will include within its ambit the back log and pendency of matters before courts and Tribunals. The judgments of this Court which were referred to earlier had no occasions to consider this aspect of the matter nor was it in issue before the said courts. Therefore, though the said judgments are judgments of Co-ordinate Benches of this Court, those judgments are on the facts of those cases. The issue which has been considered for giving effect to Order 19, Rule 1 by Tribunals and quasi judicial authorities was not in issue before the learned Judges of this Court.
7. For the aforesaid reasons, though on the facts of this case, there may not have been strict compliance, there has been substantial compliance. At any rate, the extra ordinary jurisdiction of this Court cannot be invoked to set aside the order, in the light of that following order:
8. From 1st July, 2002, if not earlier, all Tribunals and quasi judicial authorities to direct recording of evidence on affidavit at the state of examination-in-chief instead of oral evidence. The witness then be made available for cross-examination. This direction of course is where the provisions of the Code of Civil Procedure is applicable or where the Tribunal can follow their own procedure.
Rule discharged.
There shall be no orders as to costs.
Registrar of this Court to send a copy of this judgment to Chairman, Presiding Officers of all Tribunals, over which this Court exercises superintendence;
(2) Copy of this order be forwarded to the Law Secretary, State of Maharashtra and Goa and the Union Territories of Diu, Daman, Dadra Nagar Haveli to be circulated to all Tribunals and quasi judicial authorities.
Rule discharge.