Bombay High Court
Harish Vithal Kulkarni vs Pradeep Mahadev Sabnis on 10 December, 2009
Bench: A.M. Khanwilkar, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTAT JURISDICTION
TESTAMENTARY SUIT NO. 13 OF 1994
IN
TESTAMENT PETITION NO.610 OF 1993
ALONGWITH
NMT/144 OF 2008
1. Harish Vithal Kulkarni,
of Bombay, Hindu, Indian Inhabitant,
residing at A-2, Vellard View, Tardeo
Main Road, Bombay-400 034.
2. Shivanand Vishwanath Warty,
Also of Bombay, Hinhdu, Indian Inhabitant,
Residing at Warty House, Ashok Nagar,
Kanjur Marg (E), Bombay- 400 042. ... Petitioners
Versus
Pradeep Mahadev Sabnis, ... Defendants
Bombay.
And
Sudha Mahadev Sabnis ... Respondent
Mr. P.R. Naidu for the plaintiff.
Ms. Usha Purohit i/by M/s. Ganekar & Co. for the defendants.
CORAM : SWATANTER KUMAR, C.J. &
A.M. KHANWILKAR, J.
SMT. MRIDULA BHATKAR, J.
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JUDGMENT RESERVED ON : 26TH NOVEMBER, 2009
JUDGMENT PRONOUNCED ON : 10TH DECEMBER, 2009
JUDGMENT (PER SWATANTER KUMAR, C.J.)
Ex praecedentibus et consequentibus optima
fit interpretatio -The best interpretation is made
from things preceding and following.
Historical background leading to enactment of a statute has
been recognized in law as one of the relevant considerations while
interpreting a statutory provision and even while examining the
extent of its scope and application. Legislative intent and object and
reasons of enactment are also accepted as legitimate tools of the law
of interpretation. In Maxwell on The Interpretation of Statutes
(Twelfth Edition by P. St. J. Langan) the observation of Sir George
Jessel M.R. are noticed when he said, "the court, is not to be
oblivious... of the history of law and legislation. Although the Court
is not at liberty to construe an Act of Parliament by the motives
which influenced the Legislature, yet when the history of law and
legislation tells the Court, and prior judgments tell this present Court,
what the object of the Legislature was, the Court is to see whether
the terms of the section are such as fairly to carry out that object and
no other, and to read the section with a view to finding out what it
means, and not with a view to extending it to something that was not
intended."
2. It is significant to note that the traditional English view earlier
held that Legislative intent is not to be gathered from the
Parliamentary history and felt that introduction of the measures in
Parliament cannot be used as evidence for the purpose of showing
the intention. The Law then gradually changed its course and it was
held that the courts are entitled to consider such external or historical
facts as may be necessary to understand the subject matter to which
the statute relates. The House of Lords in Black-Clawsan
International Ltd. v. Papierwerke Waldhof-Aschaffenburg, A.G.,
[(1975)1 All ER 810 (HL)]1 unanimously held that the report of a
committee presented to Parliament preceding the legislation could be
seen for finding out the then state of the law and the mischief
required to be remedied. The earlier traditional view came to be
criticized and the entire Law tilted more in favour of considering the
surrounding circumstances and permitted use of such aid for better
interpretation of the provisions. The school of thought that limited
but open use should be made of Parliamentary history in construing
Referred in Principles of Statutory Interpretation (11th Edition 2008) Justice G.P. Sing Wadhwa &
Co. Nagpur.
statutes has been gaining ground as indicated in English Law
Commission and Scottish Law Commission as contended in (1970)
33 Modern Law Review 197. Lord Browne Wilkinson said,
"Reference to parliamentary material should be permitted as an aid
to the construction of legislation which is ambiguous or obscure or
the literal meaning of which leads to absurdity. Even in such cases
references in court to parliamentary material should only be
permitted in given circumstances.
3.
Under the American practice, the traditional English practice
was relaxed much earlier and now, the law liberally permits
reference to historical background. In India, the modern view
prevalent in these two systems have been applied with greater
freedom and free of restrictions. Right from the case of State of
Mysore v. R.V. Bidap, AIR 1973 SC 2555, it has been seen that Courts
have now veered to the view that legislative history within
circumspect limits may be consulted by courts in resolving
ambiguities. The use of such remedy has to be purposive that is to
achieve the purpose and for finding of the mischief dealt with by the
statute or for better attainment of the object of the Legislature. To
put it more simply the provisions of a statute and particularly of a
procedural code need to be examined very objectively while applying
the rule of plain construction at the same time keeping in mind the
need to examine the attending circumstances in the backdrop of
legislative history. It is a settled principle of law that the construction
and interpretation of procedure law may normally be not controlled
by the rule of strict construction if such application is likely to
frustrate the very object of the procedural law. The procedural law
like Civil Procedure Code is intended to control and regulate the
procedure and judicial proceedings to achieve the ends of justice and
expeditious disposal. The provisions of procedural law which do not
provide for penal consequences in default of compliance normally
would be construed as directory in nature and would receive liberal
construction. In the case of Sangram Singh v. Election Tribunal,
Kotah AIR 1955 SC 425, the Supreme Court had taken the view that
procedure is mere machinery and its object is to facilitate and not to
obstruct administration of justice. The Code of Civil Procedure
should, therefore, be considered liberally as far as possible. Its
interpretation should not be permitted or allowed to defeat the
substantial justice. The attendant circumstances and external aids
being some of the tools available with the court for interpretation of a
statute, their application has been largely accepted. In the case of
Sub-Committee on Judicial Accountability v. Union of India and
others, 1991 (4) SCC 699, the Constitution Bench of Supreme Court
took the view that it was permissible to take into consideration the
entire background as aid to interpretation and that it was a well
settled principle of modern statutory construction that external aid
could be used to discover the object of legislation particularly when
internal aids are not forthcoming. Similar view was also accepted by
the Supreme Court in the case of Shashikant Laxman Kale and
another v. Union of India and another, (1990)4 SCC 366, where the
court held as under:-
"For determining the purpose or object of the
legislation, it is permissible to look into the
circumstances which prevailed at the time when the
law was passed and which necessitated the passing of
that law. For the limited purpose of appreciating the
background and the antecedent factual matrix leading
to the legislation, it is permissible to look into the
Statement of Objects and Reasons of the Bill which
actuated the step to provide a remedy for the then
existing malady. In A. Thangal Kanju Musaliar v. M.
Venkitachalam Potti, the Statement of Objects and
Reasons was used for judging the reasonableness of a
classification made in an enactment to see if it
infringed or was contrary to the Constitution. In that
decision for determining the question, even affidavit
on behalf of the State of "the circumstances which
prevailed at the time when the law there under
consideration had been passed and which necessitated
the passing of that law" was relied on. It was
reiterated in State of West Bengal v. Union of India
that the Statement of Objects and Reasons
accompanying a Bill, when introduced in Parliament,
can be used for `the limited purpose of understanding
the background and the antecedent state of affairs
leading up to the legislation'. Similarly, in Pannalal
Binjraj v. Union of India a challenge to the validity of
classification was repelled placing reliance on an
affidavit filed on behalf of the Central Board of
Revenue disclosing the true object of enacting the
impugned provision in the Income Tax Act."
4. Reference to this background of principle of statutory
interpretation was necessary keeping in view the scope of the
reference that has been made to the Full Bench by the learned Single
Judge. We may, thus, now refer to the limited facts necessary to be
noticed leading to the present reference.
5. For the purposes of brevity, we would be referring only to the
facts of Petition No.610 of 1999 (Harish Vithal Kulkarni and
another), though number of cases raising somewhat similar issues
have been referred for opinion of the larger Bench. In that case,
petition under the Testamentary and Intestate Jurisdiction of this
court had been instituted by Smt. Sudha M. Subnis being widow of
the deceased. According to her, deceased had executed his last will
and testament in 1991 in respect of his assets in credit. Her son viz.
Pradeep M. Sabnis had filed Administrative Suit No.3354 of 1993
against his mother demanding 50% share in the property. While
relying the said will, she had prayed that the executors Harish Vithal
Kulkarni and Shivanand Vishwanath Worty be issued probate in
respect of that will. In all the cases referred to this Bench are of
similar nature where probate petitions or some similar proceedings
have been taken out on the basis of the will or otherwise which are
being contested by the respondents in the petition and who had even
challenged the legality, correctness and execution of the wills.
6. During the pendency of this petition, Court Commissioner had
been appointed for recording evidence of the petitioner which order
was subsequently changed and even for some time, the proceedings
were taken before the court. However, it was contended before the
court that cross-examination of these witnesses should be taken
before the court as they have a right to examine and cross-examine
the witnesses in open court and it was not required to refer the
matter to the Commissioner for recording of the evidence in view of
the amended provisions of Order 18 Rule 4(2) of Civil Procedure
Code. (hereinafter referred to as `Code')
7. The learned Judge dealing with the matter vide order dated 6th
October, 2009 passed the following order of reference which reads as
under:
"1. There are various types of orders on the record
of various suits; first, the Hon'ble Court
appointed/directed the Commissioner to record cross-
examination or re-cross-examination; second the
Hon'ble court by revoking even the order of
appointment of the Commissioner directed the parties
to lead the evidence in the Court. I am of the view
that the evidence under Order 18 Rule 4(2) of the
Civil Procedure Code (for short, CPC) be recorded
through the Commissioner, unless for reason recorded
and/or in exceptional case, in the Court.
2.
The Plaintiff is opposing to record the evidence
through the Commissioner. I am of the view that
recording of evidence, after the amendment to Order
18 Rule 4, read with Order 13 rule 3, 4 and 6 of CPC
be by the Commissioner and not by the Court, unless
ordered otherwise.
3. Prior to this amendment, subject to Order 26 of
CPC, unless case made out, the Court used to reject
the order of appointment of commissioner. Now, after
this amendment of 2002, as the legislature has rightly
by amendment, expressed to get the evidence
recorded through an affidavit especially examination-
in-chief. The legislature has permitted to delegate this
important power to record the evidence also through
the Commissioner.
4. In 2008(6), ALL MR 352= 2008(6) Mh.L.J.
886, Mr. Hemendra Rasiklal Ghia Vs. Subodh
Mody, the relevant order 18 rule 4 (amended)
observed as under:
This amendment was not brought into force and,
subsequently, the Code of Civil Procedure (Amendment)
act, 2002 was passed whereby by section 12(b), Order
18, Rule 4 was amended in the following manner.
"12. In the First Schedule, in Order 18
(a) ......
(b) for rule 4 (as substituted by clause (ii) of section 27
of the Code of Civil Procedure (Amendment) Act, 1999),
the following rule shall
be substituted, namely:"
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 filled 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 16,16A, 17 and 18 of Order
26, in so far as they are applicable, shall apply to the
issue, execution and return of such commission under
this rule." (Emphasis supplied.)
32. From the perusal of the amendment which was
sought to be introduced in 1999 and the actual
amendment which was brought into force in 2002, it
can be noticed that several changes were made in the
amendment which was proposed in 1999. Firstly, it can
be seen that after Order 18, Rule 4(1), a proviso has
been incorporated which was not there in the earlier
amendment and the proviso also has been added to
Order 18,Rule 4 sub-clause (4). The aforesaid first
proviso to Rule 4(1) and the second proviso to Rule
4(4) clearly reveals the intention of the Legislature.
Whereas, in the earlier amendment of 1999, the
intention of the Legislature was to delegate the work of
recording of evidence entirely to the Commissioner who
would be appointed for the purpose of recording of
evidence. The Code of Civil Procedure (Amendment) Act,
2002 makes a departure and gives discretion to the
Court to either record the cross-examination itself or
depute that work to the Court Commissioner. At the
same time, proviso to sub-rule (1) of Rule 4 clearly
indicates that the Court alone is empowered to decide
the question of proof and admissibility of documents.
Whereas, so far as objection raised during recording of
evidence before the Commissioner is concerned, proviso
to sub-rule (4) of Rule 4 clearly stipulates that the said
objection could be determined by the Court at the time
of final hearing of the case. The present amendment
brought about by the Code of Civil Procedure
(Amendment) Act, 2002, therefore clearly tries to
reconcile the earlier position and vests a discretion in
the Court of deciding the question of admissibility of
documents before the case is sent to the Commissioner
for recording the cross-examination. The purpose and
intention of the Legislature, therefore, is very clear. It is
apparent that after having noticed that large time of the
Court is taken in recording oral evidence of the
witnesses, it was thought fit to delegate this work to the
Commissioner by expanding the powers of the
Commissioner which are given under Order 26 and
further amendment to Order 19, Rules 1 and 2 gives
ample power to the Commissioner to record the
evidence. At the same time, since the Commissioner is
not competent to decide the question of proof and
admissibility of documents and evidence, discretion is
given to the Court, either to decide this issue before
sending the matter to the Commissioner for recording of
cross-examination or decide this issue after the report is
submitted by the Commissioner. It will have to be noted
here that if the objects and reasons of the Code of Civil
Procedure (Amendment) Act are noticed, it can be seen
that the entire procedure prescribed for hearing and
disposal of the suits has been overhauled and, therefore,
the Commissioner is supposed to give a report within a
period of sixty days and the period for extension of time
which is to be given to the Commissioner has to be by
recording reasons by the Court."
(Emphasis added)
5 The full Bench has concluded as under:
Conclusions :
92. In view of the above analysis of the statutory
provisions and our discussion, we, accordingly,
articulate our conclusions as follows :
Answer to Question A:
As already noticed, (i) objection to the document sought
to be produced sought to be produced relating to the
deficiency of stamp duty must be taken when the
document is tendered in evidence and such objection
must be judicially determined before it is marked as
exhibit;
(ii) Objection relating to the proof of document of which
admissibility is not in dispute must be taken and
judicially determined when it is marked as exhibit;
(iii) Objection to the document which in itself is
inadmissible in evidence can be admitted at any stage of
the suit reserving decision on question until final
judgment in the case.
The Court trying the suit or proceedings as far as
possible is expected to decide the admissibility or proof
of document as indicated hereinabove. As we have
already added a word of caution that while exercising
discretion judiciously for the advancement of the cause
of justice for the reasons to be recorded, the Court can
always work out its own modality depending upon the
peculiar facts of each case without causing prejudice to
the rights of the parties to meet the ends of justice and
not to give the handle to either of the parties to protract
litigation. The aim should always be to prevent mis-
carriage of justice and expedite trial, which is the dire
need of the time.
Answer to Question - B:
The objection to the admissibility or relevancy of
evidence contained in the affidavit of evidence filed
under Order 18, Rule 4 of C.P.C. Can be admitted at
any stage reserving its resolution until final judgment in
the case as held in Ameer Trading Corpn. Ltd. Vs.
Shapoorji Data Processing Ltd. (2004(5) All MR
(S.C.) 425) (supra)."
6. I am not expressing anything, so far as the
above aspects of recording evidence or trial are
concerned. I am of the view that, it is desirable now to
record the evidence through the Commissioner unless
the Court order otherwise. This is for the following
reasons.
a) To save the public time and energy, as once the
recording of evidence commenced the rest of the daily
board get disturbed and remaining cases need to be
adjourned.
b) The legislature has provided and delegated the
power to record the evidence through the
Commissioner, in my view it should be utilized to the
maximum extent, so that the Court can proceed with
the other basic aspects of the trial.
c) This will provide one more forum/alternative
forum only to record the evidence.
d) This will share the courts burden. This will help
to get early disposal of the matters, so that the Court
can after receipt of the commissioner's report and
after deciding the issue with regard to the documents
can straight way hear the matter finally.
e) This is also support and ensure the existing
demand of early disposal of the suits from all sorts,
including the matters under Negotiable Instruments
Act & or such other Act.
f) The recording of evidence under Order 18 Rule
4 (3) can also be with the help of electronic media,
audio or audiovisual mechanism/mode. (AIR 2003
S.C. 189, Salem Advocate Bar Association Tamil
Nadu Vs.Union of India). Though it is subject to
various safe-guards, but that is not possible in Court.
7. Therefore, as this is an important issue having far
reaching ramifications, which in my view need to be
decided as early is possible finally. Therefore, I am
submitting to consider to refer this issue to a larger
bench.
1. Whether the evidence, as referred in Order 18
Rule (2) of the CPC, cross-examination and re-cross-
examination in the Civil Matters and/or such other
matters, be recorded only through the commissioner
appointed by the Court and only in exceptional case
and/or when Court thinks fit, in the Court?
2. Or any other such connected issues.
8. In view of above, the Registry to place the
matter before the Hon'ble the Chief Justice for
appropriate order/direction."
8. It is in view of the above order of reference that the matter
came to be placed before the Full Bench. We are not proposing to
deal with the aspects which have been urged before us that in the
light of the Full Bench judgment in the case of Hemendra Rasiklal
Ghia v. Subodh Mody, 2008(6) Mh.L.J. (supra) and the judgment of
the Supreme Court in Salem Advocate Bar Association's case, AIR
2003 SC 189, no reference was needed. Since the learned Single
Judge has formed the opinion that in terms of Rule 7 of the Bombay
High Court, Appellate Side Rules, 1960 that it is an important issue
having far-reaching ramification and thus, it will be appropriate that
the question of law formulated is answered by the larger Bench. We
will proceed to deal with the question raised.
9. In the light of the principles we have discussed above and to
appropriately provide an answer to the framed question of law, it
would be necessary for us to examine the legislative history of the
provisions of Order 18 Rule 4 of the Code. The first Code of Civil
Procedure was Act 8 of 1859. Prior to this Act, the procedure of
Mofussile Courts was regulated by special Acts and Regulations
repealed by Act 10 of 1861. The Code of 1859 applied to the
Mofussile Courts. The next Code was Act 10 of 1877, which repealed
that of 1859. This was amended by Acts 18 of 1878 and 12 of 1879;
then superseded by the Code of 1882 (Act 14 of 1882). This was
amended by Acts 15 of 1882; 14 of 1885; 4 of 1886; 10 of 1886; 7 of
1887; 8 of 1887; 6 of 1888; 10 of 1888; 13 of 1889; 8 of 1890; 6 of
1892; 5 of 1894; 7 of 1895 and 13 of 1895, and then superseded by
the present Code of 1908, in which major amendments were carried
out by the Legislature by the Amending Act of 1976, 1999 and lastly
2002. Order 18 of Rule 4 of 1908 Code as it originally stood reads as
under:
'R.4. Witnesses to be examined in open Court.-
The evidence of the witnesses in attendance shall be
taken orally in open Court in the presence and under
the personal direction and superintendence of the
Judge.'
10. As is apparent from the bare reading of the said provision, it
provides right to parties to examine the witness orally in open court
in the presence and under the superintendence of the Judge
concerned. The expression, "open court" clarifies that the witness
could be examined publically. Keeping in view the said provision the
Courts had taken the view that the witness should be examined in
court as the court could also notice the demeanour of the witness
during the course of the trial. Thus, this provision mainly regulated
the right to produce witnesses and examine them in open court under
the supervision of the court.
11. By the Amending Act 46 of 1999 of the Code in terms of
section 27, the provisions of Order 18 sub-rule 4(2) were directed to
be omitted and substituted as following :
"4. Recording of evidence by Commissioner.- (1)...
(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 orally by
a Commissioner to be appointed by the Court from
amongst the panel of Commissioners prepared for
this purpose on the same day:
Provided that, in the interest of justice and for
reasons to be recorded in writing, the Court may
direct that the evidence of any witness shall be
recorded by the Court in the presence and under the
personal direction and superintendence of the judge.
12. This amending provision was again subjected to further
amendment and substitution by Amending Act 22 of 2002 where
section 12(b) substituted this provision as follows:
"12. Amendment of Order XVIII.
(b) for rule 4 [as substituted by clause (ii) of
section 27 of the Code of Civil Procedure
(Amendment) Act, 1999], the following rule shall be
substituted, namely:-
"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
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."
13. The amended provisions of 2002 Code came into force with
effect from 1st July, 2002. Main distinction between the provision of
1999 and 2002 Amendment Act was that under the provisions of
18(4)(2) of the 1999 Code, the evidence was to be led by
examination in chief by filing affidavits and the witness filing the
affidavit was to be cross examined orally by the Commissioner
appointed by the court unless the court for reasons to be recorded
passed an order under the proviso of the said rule directing evidence
to be recorded before the court. While the Amendment Act, 2002,
provided that even documents could be annexed to the affidavit, the
admissibility and objection to which would be determined at the
subsequent stage and that the cross-examination of the witness filing
the affidavit could be conducted either in the court or before the
Commissioner appointed by the Court. In other words, distinction
between these two provisions indicates the extent of discretion that
has been given to the Court to decide whether cross examination of a
witness whose affidavit has been taken on record, should be
conducted in Court or before the commissioner.
14. Under the 1999 Amendment Act, examination in chief had to
be furnished before the Court by way of affidavit while cross
examination was required to be taken orally by a Commissioner to be
appointed by the Court. Proviso to Order 18 Rule 4, Sub-rule (2) laid
down two conditions; (i) in the interest of justice and (ii) for reasons
to be recorded in writing discretion was given to the Court to direct
that the evidence of the witnesses may be recorded in the presence of
the Court and under its personal directions and superintendence. The
proviso thus was an exception to the rule contained in Sub-rule (2). It
was expected that the Court would exercise discretion only when
both the conditions were cumulatively satisfied. The expression
"interest of justice" of course had to be given a wider connotation. In
contra distinction to this, under the amended provisions of 2002 Act,
this power of judicial discretion has been vested in the Court under
the rule itself. The situation seems to be somewhat converse
inasmuch as under Sub-rule (2) now the Court has to exercise its
judicial discretion that cross examination of the witness whose
affidavit has been filed shall be taken before the Court or by the
Commissioner appointed by it and proviso to the rule indicates and
places an obligation upon the Court that the Court appointing a
Commissioner before whom such cross examination takes place, it
shall take into account such relevant factors as it thinks fit. In other
words, now the Court has to apply its mind as to when and who
should be appointed a Commissioner keeping in view the facts and
circumstances of the case and what specific directions are to be
issued for cross examination to be conducted before the
Commissioner. As it would appear that under both the provisions
discretion has been vested in the Court. The Court obviously has to
exercise such discretion in accordance with the settled principles of
law.
15. The expression "or" appearing in the amended rules would
obviously mean "either". The Supreme Court in the case of J.
Jayalalitha v. Union of India & Anr., (1999)5 SCC 138, held as under:
"9. It was submitted by the learned counsel that
Section 3 empowers the Government to appoint as
many Special Judges as may be necessary for such
area or areas or for such case or group of cases, as
may be specified in the notification. He emphasized
the use of the word "or" after such area or areas and
before such case or group of cases and further
submitted that the power conferred upon the
Government is in the alternative, that is t say, that
the State Government may appoint a Special Judge
either for an area or areas or for a case or group of
cases. But it cannot appoint a Special Judge for an
area or areas and also appoint additionally a Special
Judge for a case or group of cases within that area.
The learned counsel first drew our attention to the
meaning of the word "or" contained in New
Webster's Dictionary of the English language and the
decision of the Allahabad High Court in State of U.P.
v. Sat Narain, AIR 1959 ALL 218 : 1959 Cri LJ 409.
So far as the decision of the Allahabad High Court is
concerned, we are not able to appreciate how it can
be of any use to the appellants as it does not throw
any light on the meaning of the word "or". The
dictionary meaning of the word "or" is "a particle
used to connect words, phrases, or classes
representing alternatives". The word "or", which is
a conjunction, is normally used for the purpose of
joining alternatives and also to join rephrasing of the
same thing but at times to mean "and" also.
Alternatives need not always be mutually exclusive.
Moreover, the word "or" does not stand in isolation
and, therefore, it will not be proper to ascribe to it
the meaning which is not consistent with the context
of Section 3. It is a matter of common knowledge
that the word "or" is at times used to join terms
when either one or the other or both are indicated.
Section 3 is an empowering section and depending
upon the necessity the Government has to appoint
Special Judges for an area or areas or case or group
of cases. Even in the same area where a Special
Judge has already been appointed, a necessary may
arise for appointing one more Special Judge for
dealing with a particular case or group of cases
because of some special features of that case or cases
or for some other special reasons. We see no good
reason to restrict the power of the Government in
this behalf by giving a restricted meaning to the
word "or". In our opinion, the word "or" as used in
Section 3 would mean that the Government has the
power to do either or both the things. Therefore, the
first contention raised on behalf of the appellants has
to be rejected."
16. The expression "shall" used in Order 18 Rule 4(2) has to be
construed as "may". It will hardly be permissible to read the word
"shall" in relation to examination before a Court as it is bound to
cause absurd results. If the expression "shall" is construed strictly and
only with regard to the Court as argued before us, then the very
discretion given to the Court in this rule would stand frustrated. The
legislative intent in providing for exercise of discretion by giving
option to the Court to permit the cross examination of the witnesses
before itself or before the Commissioner appointed by it shall be
rendered otiose in effect thus defeating the very object of the
legislative amendments. It is a settled rule that the Court's
jurisdiction to interpret a statute can be invoked when a provision is
ambiguous. Interpretare et concordare leges legibus est optimus
interpretandi modus - To interpret and harmonize laws is the best
method of interpretation. The Court can iron out the fabric but it
cannot change the texture of the fabric. It cannot enlarge the scope
or intention of a legislation when the language of the provision is
plain and unambiguous. It cannot add or subtract words to a statute
or read something into it which is not there. It is also equally true
that use of expression "shall or "may" is not decisive for arriving at a
finding as to whether statute is directory or mandatory. But the
intention of the legislature must be found out from the scheme of the
Act. (Ref : Nasiruddin & Ors. V. Sita Ram Agarwal, (2003)2 SCC
577.)
17. In the case of Ammal Chandra Dutt v. Second Additional
District Judge & Ors., (1989)1 SCC 1, the Supreme Court also stated
that it is a well known principle in the interpretation of statutes that
where the situation and the context warrants it, the word "shall" used
in a section or rule of a statute has to be construed as "may".
Reference can also be made to M/s. Rubber House v. M/s.Excelsior
Needle Industries Pvt. Ltd., (1989)2 SCC 413 where it is held-
"31. The word "shall" in its ordinary import is
obligatory. Nevertheless, the word "shall need not be
given that connotation in each and every case and
the provisions can be interpreted as directory instead
of mandatory depending upon the purpose which the
legislature intended to achieve as disclosed by the
object, design, purpose and scope of the statute.
While interpreting the concerned provisions, regard
must be had to the context, subject matter and object
of the statute in question.
18.
The use of the word "shall" appearing in Sub-rule (2) is
mandatory only to the extent that the cross examination of a witness
whose affidavit has been taken on record in lieu of the examination
in chief has to be taken; but whether it would be taken before the
Court or before the Commissioner appointed by it is a matter of
discretion of the Court. There is no occasion for the Court to
construe the word "shall" as mandatory and limited to the extent that
cross examination shall only be conducted before the Court. If that
interpretation was to be accepted, it would completely frustrate the
very object of the amendment and would bring it at parity with Order
18 Rule 4 of the unamended Code of Civil Procedure, 1908. Such an
interpretation thus cannot be accepted. The use of the word "shall"
is neither a decisive factor nor capable of such a strict construction as
this interpretation does not fit in the scheme of the Code.
19. Discretion is power of the Court or Arbitrators to decide as they
may think fit. In the Second Edition of The Supreme Court on Words
and Phrases [(1950-2008) edited by Justice R.P. Singh, Ashoka Law
House, New Delhi (India)], the word "discretion" is explained as
follows:-
"Discretion" - Power of the court or arbitrators
to decide as they think fit.
The word 'discretion' connotes necessarily an
act of a judicial character, and, as used with
reference to discretion exercised judicially, it implies
the absence of a hard-and-fast rule, and it requires
an actual exercise of judgment and a consideration
of the facts and circumstances which are necessary to
make a sound, fair and just determination, and a
knowledge of the facts upon which the discretion
may properly operate. [ Corpus Juris Secundum,
Vol. 27, p. 289 as referred in Aero Trader [P] Ltd. V.
Ravinder Kumar Suri, [2004]8 SCC 307: [2004]6
SLT 428, SCC p. 311, para 6 : SLT at p. 430 para 6.]
'A discretion', said Lord Wrenbury, 'does not
empower a man to do what he likes merely because
he is minded to do so, he must in the exercise of his
discretion do not what in the exercise of his
discretion do not what he likes but what he ought.
In other words, he must, by the use of his reason,
ascertain and follow the course which reason
dictates.' [Roberts v. Hopwood 1925 AC 578 : 1925
All ER Rep 24 [HL].] This approach to construction
has two consequences: the statutory discretion must
be truly exercised, and when exercised it must be
exercised reasonably. [Maxwell]
'Discretion', said Lord Mansfield in R.v. Wilkes,
[1970] 4 Burr 2527 : [1558-1774] All ER Rep 570 :
98 ER 327 [HL], 'when applied to a court of justice,
means sound discretion guided by law. It must be
governed by rule, not by humour, it must not be
arbitrary, vague, and fanciful, but legal and
regular.' [ See Craies on Statute Law, 6th Edn., p.
273.]
Discretion means when it is said that
something is to be done within the discretion of the
authorities that that something is to be done
according to the rules of reason and justice, not
according to private opinion : Rooe's case [1598] 5
Co Rep 99b, 100a : 77 ER 209 according to law, and
not humour. It is to be not arbitrary, vague and
fanciful, but legal and regular. Lord Hulsbury, L.C.
in Susannah Sharpe v. Wakefield, 1891 AC 173 :
[1886-90] All ER Rep 651 [HL], at p. 179 referred to
in Siben Kumar 'Mondal v. Hindusthan Petroleum
Corpn. Ltd., AIR 1995 Cal 327 [AIR at pp. 333-35].
When anything is left to any person, Judge or
Magistrate to be done according to his discretion, the
law intends that it must be done with sound
discretion, and according to law [Tomlin]. In its
ordinary meaning, the word signifies unrestrained
exercise of choice or will; freedom to act according
to one's own judgment; unrestrained exercise of will;
the liberty of power of acting without other control
than one's own judgment. But, when applied to
public functionaries, it means a power or right
conferred upon them by law, of acting officially in
certain circumstances according to the dictates of
their own judgment and conscience, uncontrolled by
the judgment or conscience of others. Discretion is
to discern between right and wrong; and therefore
whoever hath power to act at discretion, is bound by
the rule of reason and law. 2 Inst. 56, 298; Tomlin.
Discretion, in general, is the discernment of
what is right and proper. It denotes knowledge and
prudence, that discernment which enables a person
to judge critically of what is correct and proper
united with caution; nice discernment, and judgment
directed by circumspection; deliberate judgment;
soundness of judgment; a science or understanding
to discern between falsity and truth between wrong
and right, between shadow and substance, between
equity and colourable glosses and pretenses, and not
to do according to the will and private affections of
persons.
The very word discretion standing single and
unsupported by circumstances signifies exercise of
judgment, skill or wisdom as distinguished from
folly, unthinking or haste; evidently therefore a
discretion cannot be arbitrary but must be a result of
judicial thinking. Lalbhai Tricamlal v. Municipal
Commr., Bombay, ILR [1909] 33 Bom 334; 10 Bom
LR 821. The word 'discretion' in itself implies
vigilant circumspection and care; therefore where
the legislature concedes wide discretion it also
imposes a heavy responsibility. Ibrahim v. Emperor,
AIR 1933 Sind 49 : 34 Cr LJ 591."
20. The discretion of a Court is called judicial discretion and is
regulated by well settled principles of law. The court has to examine
the facts and circumstances of the case and keeping in view the
provisions of Order 18 Rule 4 as a whole has to pass an appropriate
order and direction whether cross examination of a witness is to be
conducted before the Court or Commissioner appointed by it.
Discretion of the Court cannot be taken away by any interpretative
process particularly when it is unambiguously provided for by the
legislature itself. There is inbuilt element of judicial discretion and
deprivement of such a power is impermissible in light of the scheme
of the Code of Civil Procedure and settled canons of law. In terms of
Section 151 of the Code of Civil Procedure, 1908, inherent powers
are vested in Court by the legislature which necessarily imply exercise
of judicial discretion appropriately and inconsonance with the settled
precepts.
21. The learned Single Judge in the Order of Reference has
observed that "I am of the view that, it is desirable now to record the
evidence through the Commissioner unless the Court order
otherwise. This is for the following reasons:
a) To save the public time and energy, as once the
recording of evidence commenced the rest of the daily
board get disturbed and remaining cases need to be
adjourned.
b) The legislature has provided and delegated the
power to record the evidence through the
Commissioner, in my view it should be utilized to the
maximum extent, so that the Court can proceed with
the other basic aspects of the trial.
c) This will provide one more forum/alternative
forum only to record the evidence.
d) This will share the courts burden. This will help
to get early disposal of the matters, so that the Court
can after receipt of the commissioner's report and
after deciding the issue with regard to the documents
can straight way hear the matter finally.
e) This is also support and ensure the existing
demand of early disposal of the suits from all sorts,
including the matters under Negotiable Instruments
Act & or such other Act.
f) The recording of evidence under Order 18 Rule
4 (3) can also be with the help of electronic media,
audio or audiovisual mechanism/mode. (AIR 2003
S.C. 189, Salem Advocate Bar Association Tamil
Nadu Vs.Union of India). Though it is subject to
various safe-guards, but that is not possible in Court.
22. The legislature has provided that the evidence may be recorded
by the Commissioner which results in providing alternative forum for
recording of evidence and thus sharing the burden of the Court.
Evidence can also be recorded by electronic media which may result
in expeditious disposal. With respect, we are unable to find any of
these reasons to support the view expressed by the learned Single
Judge. Once the legislature has given discretion to the Court to
direct recording of cross examination by the Court itself or before a
Commissioner appointed by it, it will not be permissible to lay down
any strait-jacket formula directing that the cross examination should
not be before the Court but it should only be before the
Commissioner appointed by it. If this view is accepted then not only
will it result in divesting the Court of the judicial discretion vested in
it by the Legislature but would also frustrate the very object of the
provisions under interpretation. In fact, in our view, the Full Bench
of this Court in the case of Hemendra Rasiklal Ghia v. Subodh Mody,
2008(6)Mh.L.J. 886, has provided sufficient guidelines and even
answered to a limited extent the questions posed by the learned
Single Judge. Full Bench of the Court, of course, was primarily
dealing with the question whether it is necessary for Court to decide
about admissibility of documents before they are exhibited in
evidence or whether admissibility of evidence and proof of document
should be reserved until judgment in the case is given. But the Full
Bench had the occasion to refer to the provisions of Order 18 Rule 4
of the Code in some elaboration. The Full Bench noticed distinction
between amended and unamended provisions of Order 18 Rule 4(1)
and (2) and held that greater discretion is given to Court now to pass
an order with regard to the cross examination of the witness before
the Court or the Commissioner appointed by it, as the case may be,
the Court held as under:-
"32. From the perusal of the amendment which was
sought to be introduced in 1999 and the actual
amendment which was brought into force in 2002, it
can be noticed that several changes were made in the
amendment which was proposed in 1999. Firstly, it
can be seen that after Order XVIII, Rule 4(1), a
proviso has been incorporated which was not there in
the earlier amendment and the proviso also has been
added to Order XVIII, Rule 4 sub-clause (4). The
aforesaid first proviso to Rule 4(1) and the second
proviso to Rule 4(4) clearly reveals the intention of
the Legislature. Whereas, in the earlier amendment of
1999, the intention of the Legislature was to delegate
the work of recording of evidence entirely to the
Commissioner who would be appointed for the
purpose of recording of evidence. The Code of Civil
Procedure (Amendment) Act, 2002 makes a departure
and gives discretion to the Court to either record the
cross examination itself or depute that work to the
Court Commissioner. At the same time, proviso to sub-
rule (1) of Rule 4 clearly indicates that the Court
alone is empowered to decide the question of proof
and admissibility of documents. Whereas, so far as
objection raised during recording of evidence before
the Commissioner is concerned, proviso to sub-rule
(4) of Rule 4 clearly stipulates that the said objection
could be determined by the Court at the time of final
hearing of the case. The present amendment brought
about by the Code of Civil Procedure (Amendment)
Act, 2002, therefore clearly tries to reconcile the
earlier position and vests a discretion in the Court of
deciding the question of admissibility of documents
before the case is sent to the Commissioner for
recording the cross-examination. The purpose and
intent of the Legislature, therefore, is very clear. It is
apparent that after having noticed that large time of
the Court is taken in recording oral evidence of the
witnesses, it was though fit to delegate this work to
the Commissioner by expanding the powers of the
Commissioner which are given under Order XXVI and
further amendment to Order XIX, Rules 1 and 2 gives
ample power to the Commissioner to record the
evidence. At the same time, since the Commissioner
is not competent to decide the question of proof and
admissibility of documents and evidence, discretion is
given to the Court, either to decide this issue before
sending the matter to the Commissioner for recording
of cross-examination or decide this issue after the
report is submitted by the Commissioner. It will have
to be noted here that if the objects and reasons of the
Code of Ci vil Procedure (Amendment) Act are
noticed, it can be seen that the entire procedure
prescribed for hearing and disposal of the suits has
been overhauled and, therefore, the Commissioner is
supposed to give a report within a period of sixty days
and the period for extension of time which is to be
given to the Commissioner has to be by recording
reasons by the Court."
23.
The judgment of the Supreme Court in the case of Salem
Advocate Bar Association (supra) in paragraph 19 described the
scope of powers of the Court in terms of Order 18 Rule 4(2) of the
Code and held that there was clear power vested in Court to direct
evidence to be recorded in Court or before the Commissioner, the
Court held as under:-
"19. Order 18 Rule 4(2) gives the court the power to
decide as to whether evidence of a witness shall be
taken either by the court or by the commissioner. An
apprehension was raised to the effect that the court
has no discretion and once it decides that the
evidence will be recorded by the Commissioner then
evidence of other witnesses cannot be recorded in
court. We do not think that this is the correct
interpretation of sub-rule (2) of Rule 4. Under the
said sub-rule, the court has the power to direct either
all the evidence being recorded in court or all the
evidence being recorded by the Commissioner or the
evidence being recorded partly by the commissioner
and partly by the court. For example, if the plaintiff
wants to examine 10 witnesses, then the court may
direct that in respect of five witnesses evidence will
be recorded by the Commissioner while in the case of
the other five witnesses evidence will be recorded in
court. In this connection, we may refer to Order 18
Rule 4(3) which provides that the evidence may be
recorded either in writing or mechanically in the
presence of the Judge or the Commissioner. The use
of the word "mechanically" indicates that the
evidence can be recorded even with the help of the
electronic media, audio or audio-visual, and in fact
whenever the evidence is recorded by the
Commissioner it will be advisable that there should
be simultaneously at least an audio recording of the
statement of the witnesses so as to obviate any
controversy at a later stage."
24. Still in the second case of Salem Advocate Bar Association, T.N.
vs. Union of India, (2005) 6 SCC 344, the Supreme Court held as
under:-
"5...........The scope of Order 18 Rule 4 has been
examined and its validity upheld in Salem Advocate
Bar Assn. case, (2003)1 SCC 49. There is also no
question of inadmissible documents being read into
evidence merely on account of such documents being
given exhibit numbers in the affidavit filed by way of
the examination-in-chief. Further, in Salem
Advocate Bar Assn. case, (2003)1 SCC 49, it has been
held that the trial court in appropriate cases can
permit the examination-in-chief to be recorded in
court. Proviso to sub-rule (2) of Rule 4 Order 18
clearly suggests that the court has to apply its mind
to the facts of the case, nature of allegations, nature
of evidence and importance of the particular witness
for determining whether the witness shall be
examined in court or by the Commissioner appointed
by it. The power under Order 18 Rule 4(2) is
required to be exercised with great circumspection
having regard to the facts and circumstances of the
case. It is not necessary to lay down hard-and-fast
rules controlling the discretion of the court to
appoint a Commissioner to record the cross-
examination and re-examination of witnesses. The
purpose would be served by noticing some
illustrative cases which would serve as broad and
general guidelines for the exercise of discretion.
.........."
25.
Thus, it is clear from the above stated principles that the
discretion is vested in Court to direct cross examination of a witness
whose affidavit in examination in chief has been filed to be cross
examined either before the Court or before the Commissioner
appointed by it. Proviso to Order 18 Rule 4(2) expects the Court to
take some care while directing the evidence by way of cross-
examination to be recorded before the Commissioner as it has to pass
certain directions keeping in view the facts and circumstances of a
given case. In either of the cases, the Court has to apply its mind and
come to a conclusion whether in the facts and circumstances of a
given case, it will be in the interest of justice and for expeditious
disposal of the suit that evidence should be recorded before the Court
or before a Commissioner appointed by it. The legislative intent
behind introducing all these amendments, whether of 1999 or 2002,
was to ensure expeditious disposal of the cases. Thus, one of the
main considerations which has to weigh with the Court while dealing
with such matters is the expeditious disposal of the cases and that
interest of justice is not defeated.
26. The Amending Act of 2002 has specifically reversed the
situation existed under 1999 Act, and therefore, it would be
impermissible to adopt the same approach by process of judicial
interpretation. It may be appropriate to refer to the statement of
object of the Amendment Act of 2002.
"Statement of Objects and Reasons - The Code
of the Civil Procedure, 1908 ( hereinafter referred to
as the Code contains the law relating to the
procedure in suits and civil proceedings. The Code
has been amended from time to time by various Acts
of Central and State Legislatures. Recently, the Code
of Civil Procedure (Amendment) Act, 1999 was
enacted by Parliament with a view to cutting short
the delays at various levels. After its enactment a
large number of representations were received both
for and against its enforcement. The Law
Commission of India in its 163rd Report also dealt
with the Code of Civil Procedure (Amendment) Bill,
1997 which was enacted later on as the Code of
Civil Procedure (Amendment) Act, 1999.
2. Before action could be initiated for
enforcement of the said Act, the Bar Council of India
and certain local Bar Associations asked the
Government to relook into certain provisions which
could cause hardship to the litigants. Accordingly,
the provisions of the Code of Civil Procedure
(Amendment) Act, 1999 and other proposals to
reduce delay in the disposal of civil cases were
discussed with legal luminaries. The Government
has further considered the matter in all its aspects
after consulting the Bar Council of India and others
concerned and based on the outcome of the
deliberations, it is now proposed to further amend
the Code of Civil Procedure, 1908, consistent with
the demands of fair play and justice."
27. There are other provisions which further indicate that
wherever Commissioner is appointed, he is expected to complete the
procedure and submit report within 60 days from the date of
commission. This also indicates that the intent and purpose behind
this amended provision is to complete the proceedings at the earliest
and keep the matter well within the superintendence and control of
the Court.
28. The Supreme Court has already clarified that the expression "in
every case" appearing in Order 18 Rule 4(1) are of some significance
and examination in chief of a witness has to be tendered in evidence
by way of affidavit and the procedure prescribed therein has to be
followed. It would hardly make a difference whether the case in
hand is appealable or non appealable as contemplated under the
provisions of Order 18 Rule 5 of the Code. Reference can be made to
following observations made by the Supreme Court in the case of
Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd.,
(2004) All MR (S.C.) 425 reads as under-
"17. We may notice that Rule 4 of Order 18 was
amended with effect from 1.7.2002 specifically
provided thereunder that the examination-in-chief in
every case shall be on affidavit. Rule 5 of Order 18
had been incorporated even prior to the said
amendment.
18. Rule 4 of Order 18 does not make any
distinction between an appealable and non-appealable
cases so far mode of recording evidence is concerned.
Such a difference is to be found only in rules 5 and 13
of Order 18 of the Code.
19. It, therefore, appears that whereas under the
unamended rule, the entire evidence was required to
be adduced in Court, now the examination in chief of
a witness including the party to a suit is to be tendered
on affidavit. The expressions "in every case" are
significant. What, thus, remains, viz., cross-
examination or re-examination in the appealable cases
will have to be considered in the manner laid down in
the Rules, subject to the other sub-rules of Rule 4.
20. Rule 5 of Order 18 speaks of the other
formalities which are required to be complied with. In
the cases, however, where an appeal is not allowed,
the procedures laid down in Rule 5 are not required to
be followed.
21. In a situation of their nature, the doctrine of
suppression of mischief rule as adumbrated in
Heydon's case (3 Co. Rep. 7a, 76 er 637) shall
apply. Such an amendment was made by the
Parliament consciously and, thus, full effect thereto
must be given.
22. In Halsbury's Laws of England, Volume 44(1),
fourth reissue, para 1474, PP 906-907, it is stated:
"Parliament intends that an enactment
shall remedy a particular mischief and it
is therefore presumed that parliament
intends that the Court, when considering,
in relation to the facts of the instant case,
which of the opposing constructions of
the enactment corre3sponds to its legal
meaning, should find a construction
which applies the remedy provided by it
in such a way as to suppress that mischief.
The doctrine originates in Haydon's case
where the Barons of the Exchequer
resolved that for the sure and true
interpretation of all statutes in general
(be they penal or beneficial, restrictive or
enlarging of the common law), four
things are to be discerned and considered:
(1) what was the common law before
the making of the Act;
(2) what was the mischief and defect
for which the common law did not
provide;
(3) what remedy Parliament has
resolved and appointed to cure the
disease of the common law; and
(4) the true reason of the remedy,
and then the office of all the judges is
always to make such construction as
shalol:
(a) suppress the mischief and advance
the remedy; and
(b) suppress subtle inventions and
evasions for the continuance of the
mischief pro private commodo (for private
benefit);
and
(c) add force and life to the cure and
remedy according to the true intent of the
makers of the Act pro publico (for the
public good)."
23. Heydon's Rule has been applied by
this Court in a large number of cases in
order to suppress the mischief which was
intended to be remedied as against the
literal rule which could have otherwise
covered the field. [See for example, Smt.
Pek Kalliani Amma and others Vs. K.
Devi and others, (AIR 1955 SC 661; and
Goodyear India Ltd. Vs. State of Haryana
and Another, AIR 1990 SC 781].
29. In the present case, we are not concerned with the application
of Order 18 Rule 5 of the Code, as the question framed or referred by
the learned Single Judge is not relatable to Rule 5.
30. In light of the above discussion, we answer the question
framed by the learned Single Judge as follows:-
(i) The evidence as referred in Order 18 Rule
4(2) of the Code of Civil Procedure, 1908, cross
examination and re-examination in civil matters
and/or such other matters can be recorded in the
discretion of the Court by the Court itself or before a
Commissioner appointed by it. The question will
have to be decided in the judicial discretion of the
Court with reference to the facts and circumstances
of a given case and it is neither permissible nor
possible to provide any strait-jacket formula in this
regard.
CHIEF JUSTICE
A.M. KHANWILKAR, J.
SMT. MRIDULA BHATKAR, J.
kadam/judgment08/petition-610-93fbfinal
