M. Ramachandran, J.
1. The order passed in I.A. No. 976 of 2002 in O.S. No. 389 of 1995, by the Principal Sub Judge, Kochi dated 1.10.2002 evidenced by Ext.P12 is under challenge at the instance of the plaintiff. I may extract the order as herein below:
The prayer is to dispense with the procedure laid down in the amended C.P.C. in the matter of chief examination of witnesses by filing proof affidavit. The witness who is also an advocate is present before Court and is ready to file proof affidavit on true facts if so asked by counsel for petitioner. But the counsel for the party at whose instance the witness is summoned apprehends that the witness will not swear the affidavit in such a way to favour the case of his party. Court's function is to get at the truth.
To meet the ends of justice and keeping in view of the solemn duty of court to arrive at the truth, it is hereby ordered that as in the case of a witness who will not support the case of a party prior to C.P.C. amendment, the petitioner's counsel also will be allowed to cross examine his witness in case the facts sworn to by the witness in proof affidavit are found against the party.
With the above assurance, the I.A. Is dismissed.
The suit was filed against respondents for declaration and recovery of possession of properties scheduled in the plaint and for consequential reliefs. Petitioner represents a partnership firm. They claim ownership over a parcel of vacant land in Kochi and since partnership had been wound up, during 1994, it had been decided to sell the property. However, unexpected difficulties had arisen in the matter, the petitioner finding that third parties had come into possession thereof. It is alleged that enquiries made revealed existence of clandestine and fraudulent transfers which were basically traceable to a Power of Attorney signed before a notary public. This document was concocted allegedly forging the signature of one of the partners. It was necessary therefore that the Advocate who authenticated the Power of Attorney as notary public was to be summoned and examined before the court. Advocate Sri. K. Sikhivahanan was cited as a witness in this context and the request for summons was presented by I.A. No. 246 of 2000. Petitioner submits that the witness was a stranger to the proceedings. In the ordinary course, plaintiff could not have expected the witness to submit an affidavit for the purpose of meeting the requirement of Order XVIII Rule 4 of the C.P.C. This difficulty was there about the other summoned witness as well. In the aforesaid context, I.A. No. 976 of 2002 had been filed seeking permission to examine the witnesses in chief so as to elicit answers.
2. The witness had come to the court on 1.10.2002, but the court was of the view that an affidavit was mandatorily to be filed and opportunity for the plaintiff would be only to cross-examine the witness in case of necessity. Mr. Ravindran appearing for the petitioner submits that since petitioner was not prepared to adopt the course suggested, the Subordinate Judge had dismissed the application as evidenced by Ext.P12 order referred to earlier. He submits that Ext.P12 requires to be set aside and the application requires to be reopened, permitting oral evidence in lieu of the affidavit for the purpose of examination-in-chief of the two summoned witnesses.
3. The plea as above is opposed by counsel appearing for the respondents. Sri. T.A. Narayanan Nair, appearing for the contesting respondents submits that there was nothing objectionable in the course adopted by the learned Judge and the adamancy shown by the petitioner has resulted in protracting the matters. According to him, the contingency as highlighted by the petitioner had been brought to the attention of the Supreme Court in Salem Advocate Bar Association v. Union of India 2002 (3) KLT 920 (SC) and following the observation there, the Writ Petition deserved to be dismissed.
4. Mr. Raveendran points out that sufficient guidelines have been stated by the Supreme Court supporting his cause. The Subordinate Judge ought to have granted the request, at least in exercise of powers vested in the court under Section 151 of the Code of Civil Procedure. Amended provisions of the Code of Civil Procedure is silent as to the manner of obtaining a proof affidavit from a summoned witness, it is submitted. A summoned witness was not expected to bring in an attested affidavit when he came to the court accepting the summons, nor was the party to the suit to be competent to prepare an affidavit for him to sign on dotted lines. This interfered with the cause of prudence, and administration of justice. In fact, it was unethical, if not unlawful for an independent witness to interact with the parties to the suit or to get himself acquainted in respect of the area he was expected to depose. Counsel further submits that a summoned witness might not have been in a position to know on what details he was to prepare an affidavit, even if he had opportunity to get acquainted with the pleadings. He had no liability or obligation to engage in any such work. In such circumstances, to insist that an affidavit always was to be there, was a lop-sided view of the situation. The court was expected to rise to the occasion, and advise on a practical approach.
5. A plain reading of Order XVIII Rule 4 of course indicates that in every case, examination-in-chief of a witness should be on affidavit. A copy thereof is to be served on the other side. As contended by the petitioner, it appears that the contingency which had occasioned in the present case perhaps has escaped notice of the Parliament. It has to be held that at least in such circumstances, the inherent powers vested in the court under Section 151 of the C.P.C. could have been employed to tackle the situation. The view taken by the learned Subordinate Judge is too technical.
6. Section 151 provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court, to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In a given circumstance, as highlighted in the present case, a question naturally arises as to who is the person to draft an affidavit, which is to form the basis of the chief examination. Specific facts could be spoken through an affidavit, but the witness should be definite as to the area of the facts about which he is expected to depose. The Notary Public who had come on summons carried with him the registers maintained by him, but it would not have been possible for him to swear to any affidavit, to form the substratum for a cross examination. It was definitely not that which was expected of him. Only by a chief examination, it would have been possible to elicit answers, and it appears that the court had not applied its mind to the difficulties which had been highlighted by the plaintiff.
7. Order XVIII Rule 19 which was also incorporated by Act 46 of 1999 refers to the powers of the court to get statements on commission. The rule stands with a non-obstante clause which reads as following:
Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open Court, direct their statements to be recorded on commission under Rule 4A of Order XXVI.
The said rule as well as Rule 4A of Order XXVI do not limit the power of the Commissioner to any extent. There is no requirement for obtaining an affidavit as a prelude for cross-examination. If a Commissioner appointed by the court has such power and is enabled to preside over a chief examination, it will be illogical to bring in a technical restriction that such discretion and power are not vested in the civil court. In appropriate cases, therefore, it may be possible for the civil court to exercise its discretion, to permit examination-in-chief of a summoned witness so as to meet the ends of justice.
8. In this context, we may also advert to the observations made by the Supreme Court in Salem Advocate Bar Association's case (cited supra), and paragraph 18, thereof. It was specifically held that in case where summons had to be issued, the stringent provision of Order 18 Rule 4 may not apply. When summons are issued, the court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in court for his examination. In my view, the opportunity granted to the witness may be deemed as extended to the parties as well and it may be possible for them to opt the course, as may suit them in appropriate cases. The Supreme Court had indicated that in cases of summoned witnesses, the principle incorporated in Order 18 Rule 4 could be waived and this appears to be a final answer.
9. Resultantly, the Writ Petition will stand allowed. Ext.P12 is hereby set aside. The Subordinate Judge is directed to take up the petition afresh and adopt follow up measures as might be necessary and warranted. Opportunity is to be given to the petitioner to examine the witnesses-in-chief, as has been requested for.
The parties are to suffer their respective costs.