JUDGMENT B.A. Khan, J.
1. Appellant is facing Eviction Suit No. 896/98. In this, respondent (plaintiff) filed an application under Order 18 Rule 4 for filing the examination-in-chief of the witnesses on affidavit which was allowed by impugned order dated 21.10.2002 providing thus:
"The plaintiff to file affidavit by way of examination-in-chief subject to right of rebuttal within a period of four weeks from today and by defendant within eight weeks from today."
2. The appellant (defendant) feels aggrieved of this and has filed this appeal to assail the order. According to his Counsel Mr. Endlaw, appellant could not be called upon to file the examination-in-chief of his witnesses on affidavit prior to the cross-examination of plaintiff's witnesses. This would run counter to the scheme of Order 18 Rule 1 which provided for the plaintiff's right to begin first and then that of the defendant and would also deprive him of a right to depose/elucidate any matter or issue requiring clarification or arising out of the cross-examination of the plaintiff's witness. He has sought support for this from a Madras High Court judgment in Mohamed Hussain v. Chartered Bank, .
3. The impugned order requiring parties to submit the examination-in-chief of their witnesses on an affidavit has been passed pursuant to the latest amendment in the Civil Procedure Code substituting Rule 4 in Order 18. This Rule reads thus:
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.
3. It is not anybody's case that this Rule is ultra vires of any provision of CPC or for that matter invalid on some other ground or that it impinges upon or takes away any of the rights of the parties. All that is sought to be made out is that it reverses the order or the sequence prescribed by Rule 1 of Order 18 which provides for the rights of the parties to begin first. In other words it is submitted and suggested that since this provision confers a right on the plaintiff to begin first, the defendant could not be asked to submit examination-in-chief of his witness along with, as he was required to do so only after the cross-examination of plaintiffs witnesses was over.
4. Order 18 Rule 1 is reproduced to bring out the fallacy of Appellant's contention:
Order xviii
1. Right to begin.--The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
This provision refers to the right of parties to begin and says that plaintiff would have the right to begin unless the defendant admits his claim but where he disputes his entitlement either on some point of law or some additional facts, it would be the defendant who would have the right to begin. This right to begin contemplated by Order 18 Rule 1 has nothing to do with the requirement of submitting the examination-in-chief of the witnesses on an affidavit as prescribed by amended Rule 4. Nor does it impinge upon or militate against this right. All that new Rule 4 does is to require parties to file the examination-in-chief of their witnesses on an affidavit. This method has been devised for the convenience of the parties and to save their time and that of the Court. It does not reflect upon or take away a party's right to cross-examine the witness of the opponent. That right is very well safeguarded because the witnesses have to be summoned in any case, wherever needed, for cross-examination before the Commissioner or the Court. Moreover it is not understandable how cross-examination of a plaintiff's witness was relevant or crucial for the examination-in-chief of the defendants witness. Because the rationale behind cross-examination was to test the veracity of deposition made in the examination in chief. Therefore, examination-in-chief of a defendant's witness had nothing to do with cross-examination of a plaintiff's witness and was to be made and recorded independently.
5. The judgment cited by Appellant's Counsel is also out of context.
6. We accordingly hold that the new amended Rule 4of Order 18 requiring the parties to file examination-in-chief of their witnesses on an affidavit caters to the convenience of the parties and is aimed at quick disposal of the cause. It does not in any way run counter to the spirit and scheme of Order 18 Rule 1 which only refers to the parties right to begin.
7. This appeal, therefore, fails and is dismissed.