ORDER
L. Narasimha Reddy, J.
1. This case presents another illustration, as to how unsafe, itis to entrust the functions of the Court, to an Advocate-Commissioner, indiscriminately.
2. The petitioners filed O.S. No. 278 of 2001 in the Court of XII Additional Senior Civil Judge (Fast Track Court), City Civil Court, Secunderabad, against the respondent. The trial of the suit commenced. The recording of the evidence on behalf of the respondent, is in progress. She filed her affidavit in lieu of chief-examination. The trial Court had appointed an Advocate-Commissioner, to record her cross-examination. The Advocate-Commissioner, submitted a report, dated 17.4.2006, stating that the respondent, as DW. 1, has stated that she did not sign upon Exs.A.3 and A.4 and that she has gone to the extent of denying her signatures on the vakalat and the written statement also. He further complained that the respondent refused to sign the depositions and offered to put thumb impression on it.
3. The trial Court took note of these developments and passed a detailed order, dated 26.7.2006. It ultimately directed the learned Counsel for the respondent in the trial Court, to file an affidavit as to whether the vakalat and written statement presented by him, were signed by the respondent or not. The respondent was also directed to appear before the Court on 7.8.2006. In compliance with the directions issued by the trial Court, the Counsel filed an affidavit stating that vakalat and written statement were signed by the respondent. The respondent appeared before the Court and stated that she signed on them. Her signatures were taken on a white paper in the open Court. The Court directed the continuation of trial and posted the matter to 24.8.2006. The petitioners challenge the order, dated 26.7.2006.
4. Sri D. Hanumantha Rao, learned Counsel for the petitioners,submits that on account of the procedure adopted by the trial Court, the very sanctity of the cross-examination recorded before the Advocate-Commissioner is lost and that the respondent was given an opportunity to fill the lacunae, that may have been noticed in her deposition before the Commissioner.
5. This Court is of the view that the situation that led to passing of orders, referred to above, is on account of the indiscriminate appointment of Advocate-Commissioners, to record cross-examination of witnesses, without verifying the actual necessity. Neither the witness suffered from any disability nor her residence is at a long distance from the Court. If one compares the version presented by the Advocate-Commissioner on the one hand, and the facts spoken to by the witness directly before the Court, on the other, it becomes evident that either of them have not presented the correct facts before the Court. The witness has stated before the Court that she filed vakalat and written statement, and engaged an advocate. She signed on the papers, as directed by the Court. Her Counsel also filed an affidavit. The version presented by the Advocate-Commissioner did not accord with this. Almost a situation arose where the Commissioner was to face cross-examination about the correctness of his report.
6. Examination of witnesses and recording of evidence isrecognized, as one of the most important steps, in the process of adjudication under the Indian Legal System. The pleadings of the parties are presented in written form. It is difficult to take them on their face value. The differences between the parties can be both, as to the facts that gave rise to the litigation, and the legal principles that govern them. The very fact that one of them had approached the Court, discloses that his point of view was not accepted by the other party. The task before the Court is to ascertain the facts that gave rise to the dispute, and thereafter, to apply the relevant principles of law. Howsoever attractive the pleadings may be, they cannot be accepted, unless they are spoken to, and established through recognized means.
7. In the changed scenario, that emerges, as a result of the recent amendment to C.P.C., filing of affidavits, in lieu of chief-examination is, in the ultimate analysis, nothing but addition of few more pages to the pleadings. The actual verification as to the correctness of the contents of the pleadings, or the affidavits in lieu of chief-examination, is restricted to the stage of cross-examination. Upto the stage of filing of affidavit, in lieu of chief-examination, every thing is done by the parties, on their own accord, without any supervision of the Court. If the Courts participation in the cross-examination is also avoided, the quality of adjudication is bound to receive a dent, may be of different extent, depending on the nature of the cases. Dealing with the similar situation, this Court observed in T. Srinivasa Rao v. T. Venkata Rangaiah : AIR2007AP1 , as under:
Be that as it may, the Parliament did not intend appointment of Commissioners for recording of cross-examination, as a matter of course. The question as to whether recourse should be had to, such a measure; would depend upon the pressure of work in the Court, the condition of witness, i.e. the difficulty for him to appear before the Court, the nature of questions that may crop up during cross-examination, such as, the occasion to overrule to sustain any objections, determination as to the admissibility and relevancy of documents etc.
Appointment of Commissioners to record the cross-examination of anotherwise able witness, is prone to weaken the very adjudicatory process, and it would naturally tell upon the quality of adjudication. The tendency, would encourage the Courts, to avoid one after the other facets of adjudication, is likely to increase. The logical extension of such a course would be, to search for devises, excuses, or shortcuts, for disposal of the suits, without actually examining the issues, appreciating the evidence or undertaking discussion. Each and every step in the adjudicatory process has its own impact on the ultimate outcome. It must not be forgotten that adjudication by Courts itself is respected, on account of the various stages involved in it, and with the deletion of one or more of such steps, the credibility of the entire system would receive a dent.
8. The importance of the Court examining the witness, by itself, was recognized, even in ancient times. The demeanor of a witness noticed by the Court, during the course of recording of evidence, would provide a valuable guidance in the adjudication of the dispute. It is not uncommon that while examined in the Court, even during the course of chief-examination, the truthfulness or otherwise of the witness is assessed. Cross-examination is an important stage, where the credibility of the witness is put to test. The true purport of the evidence can be appreciated, when the witness is examined in the Court, in the presence of the Judge. Thousands of years ago, Sage Katyayana said in his treatise, as under:
Upasthithan parikshet saakshino nrupatihi swayam. Saakshibhir bhashitim vaakyam sabhyeh saha parikshayet (Verse 340)
It means that the king (in the present context, the Judge) should himself examine the witnesses that are present in the Court, and must consider the purport of the statements made by the witnesses, with the members of the Court. The same practice continued over the ages. Parliament, which has amended the CPC to enable the filing of affidavit in lieu of chief-examination, did not proceed to permit the recording of cross-examination of Commissioners, as a matter of rule. The facility created by it, for appointment of a Commissioner, which in fact was in vogue under Order XXVI CPC, cannot be resorted to, as a matter of course. The importance of the Court observing the recording of evidence keenly was emphasized by Justice H.R. Khanna. In one of his celebrated discourses, viz.; Tagore Law Lecture, in the year 1984, he observed as under:
There can be no doubt that in certain situations some active role of the Court is called for and considerably helps in clarifying the matters. I am reminded of an instance. A witness was being cross-examined. The cross-examining Counsel with a view to shake the credit of the witness put to him certain questions which I now reproduce along with the witness's answers:
Counsel: Is it a fact that you are sharing your apartment with a woman.
Witness: Yes, that is a fact.
Counsel: I put it to you that that woman is not your wife.
Witness: No, she is not my wife.
Counsel: I put it to you that that woman is not your mother.
Witness: She is not my mother.
Counsel: She is not your daughter either.
Witness: She is not my daughter.
Counsel: Nor your sister.
Witness: No, she is not my sister.
At this point the Counsel stated that he had no further questions to ask. While the witness was leaving the witness box the Judge asked him, 'Who is that woman?
Witness: She is my grand-mother.
From the above illustration, the amount of character assassination, which the witness could have been exposed to, but for the timely intervention of the Court, can easily be imagined. Instances can be multiplied and the underlying spirit is beyond any area of controversy. If witnesses particularly those who vouch to the pleadings, are cross-examined before a Commissioner, there is every possibility of the accurate version, not being extracted from the witness, or presented before the Court. Firstly, recording of the evidence is done at a place, other than the Court, and in the absence of a Judge, the witness may not feel the same restraint to speak falsehoods, compared to a situation where he is examined in the Court. Secondly, the witnesses or the Counsel representing them, may feel free to speak, as they wish before a Commissioner. Thirdly, the Court may be required to spend more time, than what is saved by appointing a Commissioner, in the process of correcting the mistakes and defects, both factual and procedural.
9. By having recourse to such devices, the Court may dispose of more number of cases. However, statistical disposals can never be a justification for any compromise with the quality of adjudication.
10. Reverting to the facts of the case, this Court is of the view that the trial Court had adopted the correct procedure, in summoning the witness before it. Having regard to the facts of the case, the cross-examination of all the witnesses that may be examined in the suit, deserves to be recorded by itself.
11. Hence, the CRP is disposed of, directing that the cross-examination of DW-1 and rest of the witnesses, shall be undertaken by the Court itself. There shall be no order as to costs.