Calcutta High Court

Sisir Kumar Roychoudhury And Ors vs Deo Kishan Mohta on 3 October, 2024

                                     1




OD - 10

                  IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction

                                   ORIGINAL SIDE



                                     IA NO.GA/11/2024
                                     CS/219/2005
                                     SISIR KUMAR ROYCHOUDHURY AND ORS.
                                           VS
                                     DEO KISHAN MOHTA


BEFORE :
THE HON'BLE JUSTICE BIVAS PATTANAYAK
Date :3rd October, 2024

                                                                             Appearance :
                                                               Mrs. Manju Agarwal, Adv.
                                                                     Ms. Anju Manot, Adv.
                                                         ..for petitioner/defendant no.1.

                                                              Mr.SouravSengupta, Adv.
                                                                    Mr.AmanBaid, Adv.
                                                          ...for the plaintiff/respondent.

The Court :This is an application seeking leave to examine the witness of

the petitioner/defendant no.1 by way of examination-in-chief on affidavit.

Mrs. Manju Agarwal, learned advocate appearing for the

petitioner/defendant no.1 submits that at the instance of the plaintiff Advocate

Commissioner was appointed to examine the witnesses of both the parties. The

examination of witnesses of the plaintiff has already been concluded. The

defendant intends to examine his witness by way of examination-in-chief on

affidavit. Order XVIII Rule 4 of the Code of Civil Procedure (hereinafter referred

to as 'Code') clearly envisages that the examination-in-chief of a witness can be

taken on affidavit and thus there cannot be any bar in proceeding with the

examination of the defence witnesses by accepting their examination-in-chief

on affidavit. Although Chapter XIV of the Original Side Rules of this Court

provides that the examination of witnesses shall be taken down in presence of

the Judge in a narrative form and in question answer form but one cannot be

oblivious to the fact that Order XVIII Rule 4 of the Code has been incorporated

by subsequent amendment in the Code in the year 2002 with the sole object of

expediting the procedure of examination of witness in Court or before a

commissioner appointed by the Court. She further submits that since the

Hon'ble Court issued commission under Order XVIII Rule 4 of the Code for

examination of the witnesses, hence the entire provisions contained therein

including examination of witness in-chief in the form of affidavit would be

applicable. In light of her aforesaid submission, she prays for leave to

fileexamination-in-chief on affidavit ofthe petitioner/defendant no.1's

witnessbefore the Advocate Commissioner and proceed with the defence

evidence accordingly.

On the contrary, Mr. SouravSengupta, learned Advocate appearing for the

plaintiff, submits that Chapter XIV of the Original Side Rules clearly indicates

that the examination has to be made in narrative form and in question answer

form in writing and there cannot be any departure from the said rule so long as

it subsists. Referring to a decision of this Court passed in Howrah Motor

Company Limited versus Exide Industries Limited reported in 2005 SCC

OnLine Cal 282, he submits that since there are specific rules expressly

specifically dealing with the procedure of recoding of evidence under Chapter

XIV of the Original Side Rules, such rules will prevail over the provisions of

Order XVIII Rule 4 contained in the Code. He also indicates that the

commission for examination of the witness has been issued by this Hon'ble

Court under Chapter XXII of the Original Side Rules and not under Order XVIII

Rule 4 of the Code as has been argued on behalf of the petitioner. In view of his

above submissions, he prays for dismissal of the application.

Having heard the learned Advocates for the respective parties, the issue

which needs to be examined as to whether examination-in-chief of a witness in

the form of affidavit can be taken before the Advocate Commissioner in trial of

a suit in the Original Side of this Hon'ble Court.

In order to examine such issue, it would be profitable to refer to Rule 1 of

Chapter XIV of the Original Side and Order XVIII Rule 4 of the Code: -

CHAPTER XIV RULE 1 OF THE ORIGINAL SIDE RULES "1. Evidence how taken. Upon the hearing of any suit or matter in Court or before a Judge the evidence of each witness shall be taken down by or in the presence and under the superintendence of the Judge or one of the Judges.

Such evidence shall be taken down ordinarily in a narrative form when in longhand, and in the form of question answer when in shorthand, by such officers of the Court as may be appointed for the purpose, and shall form part of the record.

The transcript of the shorthand note so taken shall be signed by the officer recording the note and be deemed the deposition of the witness and shall also form part of the record."

Order 18 Rule 4 of CPC -

"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 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 Commissionerappointed by it:

Provided that the Court may, while appointing a commission under this 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 (3) The Count of mechanically in the presence evidence is recorded of either in writing the case may be, and where such evidences recorded by 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 Courtappointing the commission within sixty days from the date of issue of thecommission 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 XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule"

From the provisions contained in Chapter XIV it manifests that the

recording of the evidence in a suit in the Original Side of this Hon'ble Court

should be taken down ordinarily in narrative form when in longhand, and in

the form of question answer when in shorthand. It is very relevant to note that

the aforesaid Rule does not provide for recording evidence of a witness by way

of examination-in-chief on affidavit. At this juncture, the question arises

whether provisions of Order XVIII Rule 4 of the Code can be adhered toin such

circumstances.

Similar issue fell for consideration before the Hon'ble Division Bench of

this Court in Howrah Motor Company Limited (supra) which, inter alia, has

observed as under: -

"10. It is well-settled that whenever there is a conflict between a provision in the CPC and High Court Rules of a Chattered High Court, the rules will prevail. In AIR 1954 Cal. 369, Shaw & Co. v. B. Shamaldas& Co., His Lordship P.B. Mukharji, J. (as His Lordship then was) observed as follows:

"I assent to the general proposition that under the rule-making powers of the Chartered High Court regulating the procedures can be made by such High Courts, which are even inconsistent with and different from the rules laid down in the First Schedule of the CPC and when such rules are so framed they prevail over the rules of the First Schedule of the CPC".

He also placed reliance on AIR 1999 Cal. Page 29 (Full Bench), RatanlalNahata v. Nandita Bose, when Court observed as follows:

"A Chartered High Court is entitled to make rules to regulate its own procedure inthe exercise of its Original Civil Jurisdiction, which need not be consistent with the provisions of the Code, but must be consistent with Letters Patent".

He also contended that the point is not settled beyond any controversy by the judgment reported in 2005 (2) SCC 145, Iridium India Telecom Ltd. v. Motorola Inc.

11. It appears to us, in that case the question arose whether the Original Side of the Bombay High Court was governed by the Original Side Rules or by the amended provisions of the Order 7 Rule 1 of the CPC. It was decided by the Hon'ble Supreme Court of India that a rules framed by the High Court under the powers conferred on the Chartered High Court by the Letters Patent being inconsistent with theprovisions of the CPC would prevail over the CPC. The Supreme Court approved of the decision made by the Full Bench of the Calcutta High Court in ManickchandDurgaprasad v. PatabmullRameswar, AIR 1961 Cal. 483.

12. In the said Full Bench decision of the Calcutta High Court, it was held if any rules framed by the High Court under Clause 37 of the Letters Patent be inconsistent with or confers any additional powers besides what is granted by the CPC, the rules framed under Clause 37 will prevail over the corresponding provision of the CPC.

13. We have also found that although the Apex Court held that this view taken was correct but it was argued before the Hon'ble Supreme Court that the legal effect of section 16 of the Amending Act of 2002 was to sweep away anything that was in the High Court rules, which was inconsistent with an amended Civil Procedure Code. This contention was negatived by the Hon'ble Supreme Court and it has been held that the Amending Act did not in any way affect the special hierarchical status given to the proceedings before the Chartered High Courts on its Original Side.

14. It was also urged before the Hon'ble Supreme Court that rules made by the High Court for regulating a procedure on the Original Side were subordinatelegislation and therefore, must give way to the superior legislation, namely substantive provisions of the CPC.

15. The Hon'ble Supreme Court rejected such contention. The Hon'ble Supremeobserved that far from doing away with the Letters Patent, the Amending Act of 2002 has left unscathed the provisions of section 129 of CPC and what follows therefrom. The judgment of the High Court that a High Court was governed by the Original Side Rules and not by the CPC was upheld by the Hon'ble Supreme Court.

16. It is also to be noted that a learned Single Judge of this Hon'ble Court has held that rules framed by the High Court even when inconsistent with the provisions of the Code, the rules will prevail [See 2005 (1) CHN 478].

17. Therefore, it is clear that if Chapter 14 of the rules prevails over Order 18 Rule 4 of the CPC then the question of filing an examination-in- chief by way of affidavit in a trial of suit by a Single Judge sitting on the Original Side of the High Court cannotarise.

x xx

35. We have considered the points urged before us and must accept the position that if there is any conflict between the CPC and High Court Rules of a Chartered High Court, the rules will prevail. We have further found from the CPC and we have considered the section 129 of CPC and also Order 49 Rule 2 of the CPC and we have found that there cannot be any doubt that the Order 18 Rule 4 cannot play a role when a suit is being tried before the Original Side of the High Court."

From the aforesaid observations it is palpable that whenever there is

conflict between a provision in the Code and High Court Rules of a Chartered

High Court, the rules will prevail. Therefore, the provisions of Order XVIII Rule

4 of the Code cannot be applied in case of suits in the Original Side of this

Hon'ble Court. So long as rules contained in Chapter XIV Rule 1 of Original

Side rules - "Evidence how taken" subsists, the operation of amended provision

of the Code is excluded by such specific High Court Rules.

Mrs. Agarwal, learned Advocate appearing for the petitioner/defendant

no.1 would argue that since the learned Advocate Commissioner was appointed

under Order XVIII Rule 4 of the Code, hence, the entireprovisions will apply

including recording of evidence by way of affidavit. Such submissions advanced

on behalf of the petitioner/defendant no.1 in this regard cannot be accepted