Judgment:
Soumen Sen,J.
This revisional application raises interpretation of Order 18 Rules 4 and 5 of the Code of Civil Procedure.
During the witness action, on 10th May, 2007, the witness on behalf of the defendant, namely, D.W.1 was examined and cross-examined and the same is duly recorded in the order dated10th May, 2007. Thereafter, on 8th June, 2010, when the said matter was taken up for argument, the learned Judge after going through the deposition found that the signature of the Presiding Officer was not appearing in the said deposition of D.W.1 and held that the evidentiary value of the said D.W.1 is questionable. The learned Judge, to avoid any future complications felt that another date may be fixed for further cross-examination of D.W.1 and, accordingly, adjourned the hearing of the argument till further crossexamination of the D.W.1 is over.
Thereafter, the plaintiff filed an application under Section 151 of the Code of Civil Procedure for recalling of the Order dated 8th June, 2010 on the ground that under Order 18 Rules 4 and 5 of the Code of Civil Procedure, the signature of the Presiding Officer is not necessary and the same has been the view of the Hon’ble Division Bench of the Madras High Court reported in AIR 1987 Mad. 90 (Indian Overseas Bank v. A. Vimalan and Ors.). The petitioner filed its objection and submitted that there is no proper or specific ground for recalling of the said order inasmuch as the judgment of the Madras High Court is not binding on the City Civil Court and can only have some persuasive value. Moreover, the said judgment did not conclusively hold that that signature of the Presiding Officer/Judge was not required under Order 18 Rules 4 and 5 of the Code of Civil Procedure.
With these rival contentions as noted above, the learned Trial Judge considered the said application under Section 151 of the Code of Civil Procedure and held that since there was no requirement under the amended provision of the Code of Civil Procedure to put a signature by the Judge after the evidence is recorded, there was no necessity to allow further cross-examination of D.W.1 as directed by the Order dated 8th June, 2010.
In arriving at the said conclusion, the learned Judge considered the fact that after the cross-examination was over, a prayer for adjournment was made on behalf of the defendant. The cross-examination was held in presence of the learned Advocates of the parties. The defendant filed its affidavit on evidence and she was cross-examined by the plaintiff firstly on 14th February, 2007 on which date it was deferred and ultimately the cross-examination resumed on 10th May, 2007 and on the same date, the evidence was closed. After the deposition was taken, the defendant put her signature along with the date, namely, 10th May, 2007. The signatures of the defendant appeared on the evidence on 10th May, 2007 and 14th February, 2007 are identical. There is no dispute that the defendant after being cross-examined signed the depositions on each of the dates when she was cross-examined putting the dates in her own hand. The depositions were properly recorded in open court in presence of the parties and the witness on behalf of the defendant after cross-examination was over put her signature on the typed copy of the depositions.
The learned Court held that the signature with the date appearing in the cross-examination dated 10th May, 2007 would clearly show that the defendant after taking solemn oath, present herself for cross-examination by the learned Advocate of the plaintiff and after the said deposition was typed out, the said witness put her signature on the typed copy of such deposition which could not have been possible unless the said deposition was typed contemporaneously in presence of the Presiding Officer or the Judge. The defendant never disputed that she was not cross-examined or the signature appearing on the deposition taken on 10th May, 2007 are not her signature. Moreover from the ordersheet, it was clear that the cross-examination was held on 10th May, 2007 and after the conclusion of the cross-examination, the defendant filed an application for fixing another date for argument. Subsequent thereto an order was passed on 15th June, 2007 being Order No.60 wherefrom it would appear that the learned Advocate for the defendant appeared before the Court and submitted that his client would not adduce any other witness and prayed for fixing the matter for argument. It was on the basis of such prayer, the matter was fixed for argument on 23rd July, 2007. The learned trial Judge after taking into consideration aforesaid facts held that the Stenographer or the Clerk concerned might have failed to present the said pages containing the deposition before the learned Presiding Officer for signature resulting in the present impasse. The learned Judge held that if the signature of the defendant in cross-examination was not appearing then the evidentiary value of D.W.1 could have been questionable and raise serious doubts which may call for further cross-examination or recalling of the witness.
The learned Counsel on behalf of the petitioner relied upon a Single Bench decision of the Rajasthan High Court reported in AIR 1982 Rajasthan 317 (Om Prakash v. Kamal Kishore and Ors.) for the proposition that the signature of the Presiding Officer would be necessary after the depositions are typed out and failure to do so, would vitiate the entire trial. In Om Prakash (supra) it appears that the statement of the plaintiff was recorded by the clerk while Presiding Officer was busy otherwise and such conduct of the Court was deprecated.
In the said decision it appears that while cross-examination of the plaintiff was going on, the learned Counsel for the plaintiff objected to a question which was asked in cross-examination by the learned Counsel for the defendants on the ground that the same was irrelevant but the Presiding Officer misbehaved with the Counsel which enraged the said Counsel for the plaintiff so much that he walked out of the Court and thereafter, the witness did not reply to further questions put to him in cross-examination on account of the absence of his counsel and evidence. The plaintiff was also unable to examine his other witnesses in the absence of his counsel and the evidence of the plaintiff was also closed. In an application for recalling of witness, the defendant contended that the cross-examination of the plaintiff was completed and it was not closed by the Court. It was further stated that the plaintiff himself had closed his evidence. The learned single Judge after perusing the statement of the plaintiff which was recorded on 13th November, 1960 found that although there was no doubt that it was written by a clerk and the Presiding Office had appended a note that it was written in his presence on his dictation and within his knowledge but no reason was assigned why the learned Civil Judge did not record the plaintiff himself. It was on this ground that the Hon’ble Judge of the Rajasthan High Court interfered and held as follows:-
“It must be observed in such circumstances that the proceedings in the case were conducted by the learned Civil Judge Shri Govind Narain in a highly improper manner, because even if the Presiding Officer did not record the statement of the plaintiff in his own handwriting, yet it must have been taken down in writing in the presence of and under the personal direction and superintendence of the Presiding Officer, as required under O.18 R.5 C.P.C. The presence of the Presiding Officer, while the statement of a witness is being recorded in a court of law, does not mean merely his physical presence in the court room but the Presiding Officer must be attentive to the proceedings in the case and to the deposition of the witness and it is not permissible that he might be doing some other work while the statement of the witness was being recorded by the clerk of the court without the intervention of the Presiding Officer. Such a practice if it exists must be strongly deprecated. The learned Civil Judge has exhibited utter ignorance of the basic principles of procedure relating to the recording of evidence in civil cases. The personal attention of the Presiding Officer is necessary, even when the deposition of a witness is being recorded by an officer of the court is apparent from the provisions of the Order 18 R.5 C.P.C. which provide that the evidence of each witness has to be recorded not only in the presence of the Judge but also under his personal direction and superintendence. The use of conjunctive ‘and’ in clause (1) of sub-rule (a) of Rule 5 of Order 18 C.P.C. goes to emphasise that the mere physical presence of the Presiding Officer in the court room is not sufficient in law, but the deposition of each witness in a civil case, which is appealable, has to be recorded under the personal direction and superintendence of the Judge. Ordinarily, the Presiding Officer of a court should record the statement of a witness in his own handwriting, unless it is being taken down directly on type-writer on the dictation of the Judge himself or the Judge is unable to take down the deposition of the witness in his own handwriting on account of some physical infirmity or for some other reasons to be recorded. But even when an officer of the court is taking down the statement of the witness, then the same should be recorded under the personal direction and superintendence of the Judge. This is imperative to maintain the sanctity of the record of the courts and every deposition of a witness examined in a court and not recorded by the Judge himself should be taken down on his dictation except when the witness is examined on commission. Any departure from the established procedure is likely to vitiate the proceedings as the purity of judicial record may be sullied. As the evidence of the plaintiff was wrongly closed by the trial court and no opportunity was given to the plaintiff to engage another counsel for conducting the case further on his behalf after his counsel left the court suddenly, the trial was not at all justified in refusing to reopen the plaintiff’s evidence. The learned Civil Judge, while rejecting the application of the plaintiff for reopening his evidence, had laid emphasis on the conduct of the plaintiff that he refused to answer the questions asked to him in crossexamination and that he refused to examine his other witnesses. It may be observed that the learned Civil Judge, who had succeeded the Presiding Officer who passed the order closing plaintiff’s evidence on Nov. 13, 1980 failed to look into the affidavit of the parties and also failed to take into consideration the fact that when the plaintiff’s learned counsel had left the Court the plaintiff was unable to proceed with the case unless he was afforded an opportunity to engage another counsel. The trial court acted in a wholly unjustified manner in closing the evidence of the plaintiff on that very day without giving him an opportunity of engaging another counsel and of seeking his advice for the future conduct of the case. How could a party be expected to examine his other witnesses when his counsel went out in the course of the proceedings before the court on that very day? The plaintiff had no alternative but to say that he was unable to examine his other witnesses. And how could the plaintiff engage another counsel when he was required to remain present in the court, as he was subjected to crossexamination? The plea of the plaintiff that he was not afforded sufficient opportunity to engage another counsel, therefore, appears to be well-founded and has been wrongly rejected by the trial court.”
The said judgment, however, is clearly distinguishable on facts and is not an authority for the proposition that if the deposition of a witness which was recorded in the presence of a Judge was not signed by the concerned Judge, it would vitiate the trial.
Before we advert to the issue it may be useful at this stage to compare Order 18 Rule 5 before the Amendment of 1976 and after the amendment of 1976.
Prior to the Amendment of 1976, Rule 5 as originally stood, reads as under:-
“5. In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it.”
After due consideration of the said provision by the Law Commission, the said Commission finally in the Fifty-Fourth report recommended that the present wording “under the personal direction….” should in its view, cover dictation. In order to give effect to the suggestion of the Law Commission, Rule 5 has been substituted by the Amendment Act, 1976 and it reads as follows:-
“5. How evidence shall be taken in appealable cases. – In cases in which an appeal is allowed, the evidence of each witness shall be. –
(a) taken down in the language of the Court, -
(i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.”
From the record of the proceedings it would appear that the parties did not contemporaneously raise any objection with regard to non-compliance with the provisions of Rules 4 and 5. It could be safely presumed that the said deposition was duly recorded and taken down in the language of the Court in writing and in the presence and under the personal direction and superintendence and from the dictation of the Judge directly on a typewriter. After the conclusion of the crossexamination and even on subsequent dates, no objection was raised by the defendant with regard to the non-compliance of any of the aforesaid provisions.
In the Indian Overseas Bank v. A. Vimalan and Ors. reported in 1987 Madras 90 in paragraph 8, the Hon’ble Division Bench of the Madras High Court held that under Order 18 Rule 5 of the Code of Civil Procedure as it stood prior to the amendment by Act of 1976, it was obligatory to read the evidence in the presence of the Judge and the witnesses and the Judge was also required to correct the same and sign it, but under the amended provisions of Order 18, Rule 5 this is not necessary. In the said decision at the argument stage it was faintly contended on behalf of the respondent that the deposition of the witness recorded in Court ought to have been signed by the Presiding Officer and, therefore, no reliance could be placed on the evidence. However, such contention was rejected holding that under the amended provision, there is no such requirement. In this case, having regard to the materials on record and on the basis of the facts narrated above, the conclusion reached by the learned single Judge, 9th Bench, appears to be sound, reasonable and in conformity with the amended provision of the Code of Civil Procedure. The discretion exercised by the Court in recalling the earlier order, does not suffer from any misconception of law or illegality and/or material irregularity.
In view of the aforesaid, the revisional application fails, however, there shall be no order as to costs.