ORDER
B. Padmaraj, J.
1. Heard the arguments of the learned Counsels for the petitioner and carefully perused the case papers including the impugned order made by the Trial Court, whereby, it has dismissed the application I.A. No. V filed by the petitioner herein under Order 18, Rule 5 of the CPC read with Section 151 of the CPC requesting the Court to permit him to examine the party before the Court.
2. This is a plaintiffs revision petition against the order dated 27-8-2002 passed by the Trial Court in I.A. No. V.
3. The suit of the plaintiff filed before the Trial Court is one for the relief of specific performance, declaration and injunction. During the course of the trial, the plaintiff wanted to give evidence in Court, but the Court below stated to have directed the plaintiff to give his affidavit under Order 18, Rule 4 of the CPC. It is stated that the petitioner herein filed an application under Order 18, Rule 5 of the CPC requesting the Court to permit the petitioner to lead oral evidence in the manner as provided under Order 18, Rule 5 of the CPC instead of filing the affidavit as contemplated under Order 18, Rule 4 of the CPC. The Court below dismissed the application holding that after the amendment of the CPC,the petitioner is required to file an affidavit as contemplated under Order 18, Rule 4 of the CPC and oral evidence cannot be permitted. It is against the rejection of the application filed by the petitioner herein under Order 18, Rule 5 of the CPC, the instant revision petition has been filed.
4. Learned Counsel for the petitioner has vehemently contended before me that the impugned order made by the Court below is liable to be set aside principally on four grounds. He contended that the first ground being that indisputably the Court below noticed the provisions contained in Order 18, Rule 5 of the CPC which is applicable to all appealable cases and the case on hand being appealable, declined to apply the same and as such there is an error of jurisdiction. Secondly, he contended that Order 18, Rules 5 and 3-A and Order 18, Rule 4 of the CPC clearly makes a distinction between the evidence of a party and a witness, which has not all been considered by the Court below. While elaborating this submission, he contended that a reading of Order 18 of the CPC clearly provides that wherever the Legislature refers to the parties, it refers to the party and only in cases where it refers to the witness, then only affidavit can be filed and not of a party. According to the learned Counsels for the petitioner this is evident from the provisions contained in Order 18, Rules 3 and 3-A of the CPC. Thus, he contended there is a marked difference in regard to recording of the evidence of a party and the witness. He contended that the affidavit to be filed in lieu of evidence as provided for under Order 18, Rule 4 of the CPC is only applicable to a witness and not to the party himself. He therefore contended that the impugned order made by the Court below which clearly ignores this marked difference between the evidence of witness and evidence of a party in the circumstances, is wholly without jurisdiction. Thirdly, he contended that the Trial Court despite noticing the merit in the contention advanced on behalf of the petitioner, declined to exercise its discretion in favour of the petitioner, which amounts to non-exercise of the discretion by the Trial Court. Fourthly, he contended that the provisions of a statute are to be given their natural and grammatical interpretation and if such an interpretation is given, according to the learned Counsels for the petitioner to the amended provisions of the CPC more particularly to Order 18, Rule 5 of the CPC, the petitioner would be entitled to lead evidence before the Court in the manner as provided under Order 18, Rule 5 of the CPC and not by way of affidavit as has been prescribed under Order 18, Rule 4 of the CPC. He further contended that looking to the nature of controversy and since one such matter has already been admitted by this Court in CRP No. 3730 of 2002, it shall be proper that all such matters be considered together. In support of this submission, he has relied upon an unreported judgment of this Court rendered in Writ Appeal Nos. 932 and 933 of 1974, dated 11-12-1974, wherein it is observed as under.-
'At the preliminary hearing stage, we asked the learned High Court Government Advocate to take notice, and the matters wereheard today. The appeals are directed against the orders made by Venkataramaiah, J., refusing to stay the operation of Rule 11 of the Karnataka Cinema (Regulation First Amendment) Rules, 1974 pending disposal of the Writ Petition Nos. 6373 and 6367 of 1974. In those two writ petitions, the appellants have challenged the validity of Rule 11 aforesaid. The learned Single Judge issued rule nisi but refused to make an interim order staying the operation of the said rule.
2. It is urged in these two appeals, that in similar writ petitions viz., W.P. Nos. 3787 and 4810 of 1974 had several other cases. Jagannatha Shetty, J., while issuing rule nisi had granted stay of operation of Rule 11. We called for the papers in the said writ petitions and it is seen therefrom that the submission of the learned Counsel is correct.
3. If no stay is granted in these matters, it will result in discrimination against the appellants who are similarly situated. When in similar cases stay has been granted earlier and the State has not moved for vacating such stay, the learned Single Judge would have exercised his discretion properly by granting the relief. Apparently, the fact that in similar matters stay has been granted and the State has not asked for vacating the same, was not brought to the notice of Venkataramaiah, J.'.
5. Further, while drawing my attention to the provisions contained in Order 18, Rule 5 of the CPC, he contended that in all appealable cases, the evidence is to be recorded in the manner as provided under Order 18, Rule 5 of the CPC and not by affidavit in the manner as prescribed under Order 18, Rule 4 of the CPC. He also invited my attention to the provisions contained in Order 18, Rules 2, 3-A and 4 to contend that the Legislature has maintained the distinction between a party and witness and hence whenever a party is to be examined, it is the provisions contained in Order 18, Rule 5 of the CPC which is to be applied and not Order 18, Rule 4 of the CPC. He also drew my attention to the dictionary meaning of the words 'party' and 'witness' and contended that the dictionary meaning of party is that a party to an action or suit is one who is directly interested in the subject-matter in issue whereas, the dictionary meaning of the witness is one who gives evidence in a cause; an indifferent person to each party, sworn to speak the truth, the whole truth, and nothing but the truth. He thus contended that there is conscious distinction between the party and witness in the Civil Procedure Code and insofar as the provisions contained in Order 18, Rule 4 of the CPC is concerned, is applicable only to witnesses and not to parties. He further contended that the very fact that Order 18, Rule 5 of the CPC is retained despite the introduction of Order 18, Rule 4 of the CPC, it is to be given some weightage and that in all appealable cases, the evidence of a party has got to be recorded in the manner as prescribed under Order 18, Rule 5 of the CPC. He also contended that the impugned order made by the Trial Court would clearly indicate that there is a disinclination on the part of the Court below to examine the question which arosefor its consideration and hence, the impugned order made by the Trial Court is on the face of it cannot be sustained in law and it is liable to be set aside.
6. In support of his submissions, the learned Counsel for the petitioner has placed reliance upon the following decisions:
(1) In the case of Jugalkishore Saraf v. Raw Cotton Company Limited AIR 1955 SC 376, wherein, the Hon'ble Supreme Court had held as under.-
'The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation'.(2) In the case of Boota Mal v. Union of India : [1963]1SCR70 , wherein, the Hon'ble Supreme Court has held.-
'Ordinarily, the words of a statute have to be given their strict grammatical meaning and equitable considerations are out of place, particularly in provisions of law limiting the period of limitation for filing suits or legal proceedings'. (3) In the case of Siraj-ul-Haq Khan and Ors. v. The Sunni Central Board of Waqf, Uttar Pradesh and Ors. : [1959]1SCR1287 , wherein, the Hon'ble Supreme Court has held as under.-
'It is well-settled that in construing the provisions of a statute Courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative'.(4) In the case of S.A. Venkataraman v. State : 1958CriLJ254 , wherein the Hon'ble Supreme Court has held at relevant page 109, para 10 as under.-
'In construing the provisions of a statute it is essential for a Court, in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough. It is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the Legislature by construing the provisions of the statute as a whole and taking into consideration other matters and the circumstances which led to the enactment of the statute. Observations of Denning, L.J., as he then was in the case of Seaford Court Estates Limited v. Asher1949-2 KB 481 : 65 TLR 379, were relied upon by Mr. Chatterjee. It is, however, clear that the observations of the learned Judge were made with reference to the provision of a statute which was ambiguous. We cannot construe the observations to mean that where the language of a statute was free from ambiguity a duty was cast upon the Court to do anything more than to give effect to the words used. Although reference was made to Article 361 of the Constitution and Section 197-A of the Code by Mr. Sethi, we are unable to see how the words used therein assist us in construing the provisions of Section 6 of the Act'.(5) In the case of J.K. Cotton Spinning and Weaving Mills Company Limited v. State of Uttar Pradesh and Ors. : (1961)ILLJ540SC , the Hon'ble Supreme Court has held as under.-'In the interpretation of statutes the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also'.
7. While placing reliance upon the above rulings the learned Counsel for the petitioner has contended that in the premise, the order made by the Court below may be set aside and the petitioner may be permitted to lead oral evidence in the manner as contemplated under Order 18, Rule 5 of the CPC.
8. Having heard the submissions of the learned Counsel for the petitioner and having carefully perused the several decisions relied upon by the learned Counsel for the petitioner, the short question that would arise for consideration is whether the impugned order made by the Trial Court warrants any interference in revision by this Court. It has to be made clear that the Court below appears to have directed the petitioner herein to give an affidavit in lieu of the examination-in-chief of the petitioner and his witnesses as prescribed under Order 18, Rule 4 of the CPC. Now the question is whether the Trial Court was right in so directing under the amended provisions of the CPC, viz., Order 18, Rule 4 of the CPC.
9. Order 18, Rule 4(1) of the CPC which is relevant for our purpose reads as under.-
'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'.
10. Thus Order 18, Rule 4(1) of the CPC clearly prescribes that in every case, the examination-in-chief of a witness shall be on affidavit. Order 18, Rule 4(1) of the CPC is mandatory, which virtually gives no option to the Trial Court in the matter of taking the examination-in-chief of a witness, which could only be by way of an affidavit. True, the ordinary rule as laid down under Order 18, Rule 5 of the CPC is that decision on facts must be decided on evidence recorded viva voce in Court, but then this procedure in the matter of recording of examination-in-chief of a witness is concerned, can be dispensed with and shall be taken on affidavit in the manner as prescribed under Order 18, Rule 4(1) of the CPC. In the matter of recording of examination-in-chief of a witness is concerned, the provisions contained in Order 18, Rule 4(1) of the CPC applies to every case and hence Order 18, Rule 5 need not be followed to that extent, subject however to the right of the opposite party to have the deponent produced for cross-examination. It may be stated even at the cost of repetition that now by virtue of Order 18, Rule 4(1) of the CPC, the examination-in-chief of a witness shall be on affidavit. Order 18, Rule 4(1) of the CPC clearly prescribes that every case (whether it is appealable or otherwise), the examination-in-chief of a witness shall be taken on affidavit. Therefore, in the matter of examination-in-chief of a witness by virtue of Order 18, Rule 4(1) of the CPC, it shall be taken on an affidavit and the provisions contained in Order 18, Rule 5 of the CPC need not be followed to that extent. As I have already noticed Order 18, Rule 4 of the CPC is mandatory which virtually gives no option to the Trial Court in the matter of taking the examination-in-chief of a witness, which could only be taken on affidavit as contemplated under the provisions contained under Order 18, Rule 4(1) of the CPC. Thus the affidavit of a witness can and should be used as evidence insofar as the examination-in-chief of a witness is concerned in view of the specific provisions contained in Order 18, Rule 4(1) of the CPC, which is in the nature of an exception to Order 18, Rule 5 of the CPC. Order 18, Rule 5 if read along with Order 18, Rule 4(1) of the CPC, it would clearly indicate that in the matter of examination-in-chief of a witness is concerned, Order 18, Rule 4 of the CPC is in the nature of an exception to Order 18, Rule 5 of the CPC. This is because the procedure prescribed under Order 18, Rule 4(1) of the CPC is applicable in every case without any exception whether it is appealable or otherwise. It specifically empowers the Court to treat the affidavit as evidence of the facts alleged therein. It has to be stated that the word 'evidence' means and includes all statements which the Court permits or requires to be made before it by witness in relation to matters to fact under enquiry, such statements are called oral evidence. It is needless to point out that the deposition of witnesses are included in the term 'evidence' as defined under the Indian Evidence Act. Thus the word 'evidence' includes all legal means, exclusive of mere arguments, which tend to prove or disprove any fact. Ordinarily evidence is to be recorded in Court as provided under Order 18, Rule 5 of the CPC. But, the procedure in the matter insofar as it relates to the examination-in-chief of a witness is concerned, will have to be dispensed with now, in view of the specificprovisions contained in Order 18, Rule 4(1) of the CPC, which clearly directs or mandates the Court that in every case the examination-in-chief shall be on affidavit. When an affidavit is filed by a party under Order 18, Rule 4 of the CPC, the opposite party is entitled to cross-examine the deponent, which could be taken in Court in the manner as provided under Order 18, Rule 5 of the CPC or could be taken on commission also. Further, under Section 118 of the Indian Evidence Act, all persons except those that suffer from intellectual weakness are competent to give evidence. Section 120 of the Indian Evidence Act declares that the party to the suit in all civil proceedings is a competent witness. Therefore, there is no distinction between a party and a witness, as sought to be made out by the learned Counsels for the petitioner, while giving evidence in Court. It has to be pointed out that a party who intends to give evidence in a case is a witness. It cannot be disputed that a party to a suit is also competent to give evidence in a civil proceeding and when he so chooses to give evidence in a case, he is also a witness for all practical purposes. It is no doubt true that a person who brings action before a Court is a party. But then if such a party intends to give evidence before the Court, he will be a witness in his own case. That is to say, the party who gives evidence before the Court is a witness. In this context, a reference may be made to the provisions contained in Order 18, Rule 3-A which says that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined unless the Court for reasons to be recorded permits him to appear as his own witness at a later stage.
It is thus clear that a party who wishes to depose shall be a witness in his own case. There is no separate procedure prescribed for recording of evidence of a witness and a party to the suit in the CPC. The same is the procedure prescribed for recording of evidence of a party as well as the witness examined on his behalf. This is because when a party wishes to give evidence in his own case in a civil proceeding, he is a witness on his own behalf. Therefore, in the matter of recording of evidence, there is no distinction made between a party and a witness in a civil proceeding. That is to say insofar as the procedure prescribed for recording of evidence is concerned, it is the same whether it be of a party or of his witness and there is no separate provision under the CPC dealing with the procedure for recording the evidence of a party. If the argument of the learned Counsels for the petitioner is to be accepted, then it will lead to a disastrous consequence, inasmuch as there is no provision under the CPC dealing with the procedure for recording the evidence of a party, then in that event a party cannot be examined in the case in support of his case. Therefore, the distinction that is sought to be drawn between a party and a witness in the matter of recording of evidence is concerned cannot be accepted. I have also carefully perused the provisions contained in Order 18, Rule 1 to Order 18, Rule 3-A of the CPC to which my attention has been drawn by the learned Counsels for the petitioner. On careful perusal of the said provisions, I find that Order 18, Rule 1 of the CPC only deals with the right to begin the evidence and Order 18, Rule 2 of the CPC deals with the statement and production of evidence on theday fixed for hearing of the suit and Order 18, Rule 3 of the CPC deals with a situation where there are several issues, the burden of proving some of which lies on a party and it also deals with a right to reserve the rebuttal evidence and Order 18, Rule 3-A deals with the order in which the party and his witnesses are to be examined and they do not in any way deal with the procedure for recording of evidence in Court. The only two provisions which specifically deals with the procedure for recording of evidence of witnesses are contained in Order 18, Rules 4 and 5 of the CPC, which clearly lays down the procedure for recording of evidence of a witness, which expression also includes a party who intends to give evidence on his behalf. All these provisions read together would clearly indicate that a party when he gives evidence on his behalf in a case is also a witness and no such distinction has been made under the provisions of the CPC in the matter of the procedure for recording of evidence between a party and a witness. Therefore, I am unable to accept the contention of the learned Counsels for the petitioner that the provisions contained in Order 18, Rule 4 of the CPC has no application for the examination of a party and that it is only applicable to a witness. It has to be pointed out that even the provisions contained in Order 18, Rule 5 of the CPC also deals with the procedure for recording of evidence of witness and if according to the learned Counsels for the petitioner Order 18, Rule 4 of the CPC has no application to a party to the suit, then equally Order 18, Rule 5 of the CPC has also no application to a party as it specifically refers to the recording of evidence of a witness. Therefore, if such contention is to be accepted, it will lead to a situation that a party to witness cannot be examined at all in the civil proceedings as there is no procedure prescribed for recording of evidence of a party to the suit. Therefore, as I have already stated the procedure for recording of evidence as contemplated under Order 18, Rules 4 and 5 of the CPC is applicable to both the parties to the suit as well as the witnesses examined on their behalf. Now it is to be seen that the provisions contained under Order 18, Rule 4(1) of the CPC as amended by the CPC Amendment Act of 2002 clearly provides that the deposition of a witness, which expression as I have already stated also includes a party to the suit, in chief examination may be submitted rather shall be submitted by way of an affidavit. The privilege of giving evidence in chief examination which is extended in every case not only to the witnesses examined on behalf of the party, but also to the party who intends to give evidence on his own behalf in a case. The said privilege extended to a party as well as to a witness under Order 18, Rule 4(1) of the CPC is in the nature of an exception to Order 18, Rule 5 of the CPC in the matter of taking of the examination-in-chief by an affidavit. So long as the said provisions remain in the statute, the procedure prescribed thereunder has to be followed. I repeat that the distinction that is sought to be drawn by the learned Counsels for the petitioner between a party and a witness in the matter of recording of evidence is concerned, appears to be superfluous. In this context, a reference may be made to the provisions contained in Order 18, Rule 3-A of the CPC as well as to Section 120 of the Indian Evidence Act. Order 18, Rule 3-A ofthe CPC prescribes that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage. Section 120 of the Indian Evidence Act declares that the party to the suit in all civil proceedings is a competent witness. These two provisions read together would clearly indicate that a party who wishes to give evidence in his own case is a witness inasmuch as he has also to enter the witness-box and affirm on oath that he will speak the truth. Further, as I have already stated there is no separate procedure for recording the evidence of a party to the suit and a witness for the party in the CPC and that being so, the word 'witness' used in Order 18, Rule 4 as well as in Order 18, Rule 5 of the CPC has been aptly used and it includes not only the witnesses examined on behalf of a party, but also a party who intends to examine himself as a witness in his own case. Therefore, the distinction that was sought to be drawn by the learned Counsels for the petitioner between the words 'party' and 'witness' to contend that the provisions contained in Order 18, Rule 4 of the CPC has no application to a party is highly misconceived and it cannot be accepted. I am of the considered view that the provisions contained in Order 18, Rule 4 of the CPC is applicable to both the party to the suit as well as to the witnesses examined on his behalf. Then Order 18, Rule 4(1) of the CPC clearly prescribes that in every case the examination-in-chief of a witness shall be on affidavit and hence no exception can be made with regard to a party and his witness in the matter of recording of the examination-in-chief. I cannot see why the fact should not be proved by an affidavit when Order 18, Rule 4(1) of the CPC clearly empowers the Court and that when the same is in the nature of an exception to Order 18, Rule 5 of the CPC in the matter of taking the examination-in-chief of a witness is concerned. It would be of some relevance to note here itself that the Indian Evidence Act has expressly declared not to apply to affidavits. This would clearly answer the contention of the learned Counsels for the petitioner that Order 18, Rule 4(1) of the CPC does not take care of the rules of evidence which says that leading questions should not be put in the examination-in-chief and that if affidavit is permitted to be taken in lieu of examination-in-chief, it will be inconsistent with the provisions contained in the Indian Evidence Act. When the Indian Evidence Act itself has no application to the affidavit, the provisions contained therein has no application to the affidavits taken in lieu of the examination-in-chief of a witness in the manner as provided under Order 18, Rule 4(1) of the CPC. Further, as I have already noticed above Order 18, Rule 4(1) of the CPC is in the nature of an exception in the matter of giving evidence in chief-examination which is applicable to all cases irrespective of the fact whether it is appealable or non-appealable. The said provision clearly dispense with the procedure of recording of examination-in-chief in Court and mandates that such evidence shall be given by way of affidavit and that does not in any way affect the rights of the parties or cause any prejudice to their interest. The apprehension of the learned Counsels for the petitioner in this regard is highly misconceived andimaginary. According to me, the party producing the witness is not in any way handicapped by such procedure and on the other hand it will certainly reduce the hardship and it is in the nature of beneficial provision to the parties to the suit. Insofar as the opposite party is concerned, there is also no cause for concern because his right to cross-examine under Order 18, Rule 5 of the CPC is still available and he can always request the Court to have the cross-examination of a witness in Court in the manner as prescribed under Order 18, Rule 5 of the CPC instead of taking the evidence on commission. It is pertinent to note here itself that insofar as recording of evidence of a witness, other than the examination-in-chief of a witness, there is an option to the Court either to record the evidence before the Court or by issue of commission. But, insofar as the examination-in-chief is concerned, the Court has no option and it shall be an affidavit as enumerated or prescribed under Order 18, Rule 4(1) of the CPC. Certain apprehensions expressed by the learned Counsels for the petitioner in the matter of admissibility or otherwise of the documents etc., is concerned, if the examination-in-chief is taken by affidavit, it is to be stated that the same has been duly taken care of by the proviso appended to Order 18, Rule 4(1) of the CPC. The proviso to Order 18, Rule 4(1) of the CPC clearly indicates that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the Court. Therefore, if any, such documents are filed along with the affidavit, it is always open to the parties to bring such fact to the notice of the Court in the manner as prescribed under the proviso to Order 18, Rule 4(1) of the CPC. In fact such a procedure has been recognised under law. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr. AIR 2001 SC 1158 : (2001)3 SCC 1 : 2001. Cri. L.J. 1254 (SC), wherein, it is observed as under.-
'12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But, the fall out of the above practice is this: Suppose the Trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or the Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the Trial Court. In such a situation the higher Court may have to send the case back to the Trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impedesteady and swift progress of trial proceedings, must be recast or remolded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
14. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
15. We, therefore, make the above as a procedure to be followed by the Trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence'.
11. The said observations made by the Hon'ble Supreme Court in the above cited decision are equally applicable to the civil cases and this is what the proviso to Order 18, Rule 4(1) of the CPC seeks to achieve. The said provision is in consonance with the law laid down by the Hon'ble Supreme Court in order to speed up the trial of the case before a Trial Court. Therefore, the said apprehension of the petitioner which has been duly taken care of by the proviso to Order 18, Rule 4(1) of the CPC is highly misconceived and cannot be a ground to dispense with the procedure prescribed under Order 18, Rule 4(1) of the CPC in the matter of taking the examination-in-chief of a witness by an affidavit. With regard to the apprehension that by adopting such a procedure even the leading questions will be permitted to be put in the chief examination of a witness is concerned, it has to be stated that when the Indian Evidence Act itself is not applicable to the affidavits, then the question of invoking the provisions of the Indian Evidence Act in the matter of recording ofexamination-in-chief in Court will not arise. Now coining to the last contention of the learned Counsels for the petitioner, it has to be stated that the unreported decision of this Court relied upon by the learned Counsels for the petitioner, was case where the appeals were filed against the orders made by the learned Single Judge of this Court in refusing to stay the operation of Rule 11 of the Karnataka Cinemas (Regulation) (1st Amendment) Rules, 1974 pending disposal of the Writ Petition Nos. 6373 to 6367 of 1974 wherein the appellants have challenged the validity of Rule 11 as aforesaid and it appears that the learned Single Judge of this Court in those writ petitions issued rule nisi, but refused to make an interim order of stay. It was found by the Division Bench of this Court that in similar writ petitions, another learned Single Judge of this Court while issuing rule nisi, had granted stay of the operation of Rule 11. Under the circumstances, it was held by the Division Bench of this Court that if no stay is granted, it will result in discrimination against the appellants who were similarly situated. I do not know as to how the learned Counsels for the petitioner can draw support from the above unreported decision of this Court to the case in hand, which has been taken up by me to hear on the merits of the revision petition in order to find out whether the impugned order made by the Trial Court needs any interference by this Court on the facts and in the circumstances of the case. Having carefully perused the unreported decision relied upon by the learned Counsels for the petitioner, I find that the said decision has no application to the facts and circumstances of the case in hand. It is needless to say that the facts of each case differs and on the facts and in the circumstances of this case, I feel that the Trial Court was justified in declining to grant the request of the petitioner. It is to be seen further that the order in question of the Trial Court in my view is not a revisable order. This is because the proviso to Sub-section (1) of Section 115 of the CPC puts a restriction on the powers of this Court inasmuch as this Court shall not under this section vary or reverse any order made or any order deciding an issue in course of a suit or other proceedings except where the order made would have finally disposed of the suit or other proceeding. By this amendment which has been brought about by the Amending Act of 1999, the power of the High Court in the matter of revision under Section 115 of the CPC has been curtailed; the intention of the Legislature being that this Court should not interfere with each and every interlocutory order passed by the Trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming under the proviso to Sub-section (1) of Section 115 of the CPC would be entertained by this Court. It is no doubt true that in view of the explanation to Section 115 of the CPC, an interim order would be revisable, but then for exercising powers under Section 115 of the CPC by this Court, the order must satisfy the condition mentioned in the proviso to Sub-section (1) of Section 115 of the CPC. As I have already stated, the proviso to Sub-section (1) of Section 115 of the CPC puts a restriction on the powers of this Court inasmuch as this Court shall not under this section vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding, exceptwhere the order if it had been made in favour of a party applying for revision would have finally disposed of the suit or other proceeding. Therefore, under the proviso to Sub-section (1) of Section 115 of the CPC, this Court would be justified in interfering with an order of a subordinate Court if the said order finally dispose of the suit or other proceeding. Applying this test, the order in question of the Trial Court could not be said to have finally disposed of the suit and therefore it would not come under the proviso to Sub-section (1) of Section 115 of the CPC and hence not revisable. Further, it is almost inconceivable how the order in question which is in the nature of extending a privilege to the petitioner could possibly cause failure of justice or irreparable injury to the petitioner. After all the provisions contained under Order 18, Rule 4 of the CPC are beneficial to the parties and they are in the nature of reducing the hardship to the parties in the matter of recording of evidence of witnesses. Hence, one cannot envisage a situation where the order directing the petitioner to give an affidavit in lieu of the examination-in-chief of the petitioner and his witnesses as prescribed under Order 18, Rule 4 of the CPC would even remotely cause failure of justice or irreparable injury to the petitioner. I am therefore of the view that the impugned order made by the Trial Court is not revisable by this Court under Section 115 of the CPC.
12. Therefore, for the foregoing reasons, I am of the clear view that in every case, the examination-in-chief shall be on affidavit as prescribed under Order 18, Rule 4 of the CPC and I should say that it is in the nature of an exception to Order 18, Rule 5 of the CPC. Looking to the provisions contained in Order 18, Rule 4 of the CPC which as I have already stated is in the nature of exception to Order 18, Rule 5 of the CPC, the Courts ought to take the examination-in-chief in every case on affidavit. In this view of the matter, I find that there is no error of jurisdiction committed by the Trial Court in declining to grant the request of the petitioner. Hence, the revision petition filed by the petitioner is liable to be dismissed and it is accordingly dismissed.