KEYWORDS:-EVIDENCEEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 BY AFFIDAVITAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge.
AIRAIR All India Reporter 2004 SC 355 : (2003) 5 Suppl. SCRSupreme Court Reports It is the official Reporter of the reportable decisions delivered by the Supreme Court of India. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India. 634 : (2004) 1 SCCSCC Supreme Court Cases 702 : JT 2003 (9) SC 109 : (2003) 9 SCALE 713
(SUPREME COURT OF INDIAArticle 124 of the Constitution of India Constitution of India > 124. Supreme Court (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office (b) a Judge may be removed from his office in the manner provided in clause (4). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-- (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4): (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.)
| Ameer Trading CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. Ltd. | Appellant |
| Versus | |
| Shapoorji Data Processing Ltd. | Respondent |
(Before : V. N. Khare, C.J.I., S. B. Sinha And Dr. A. R. Lakshmanan, JJ.)
Civil AppealCivil Appeal Vasant Ganesh Damle vs. Shrikant Trimbak Datar (AIR 2002 SC 1237) in the following words: "The appeal is considered to be an extension of the suit because U/S. 107 of the Code of Civil Procedure, the appellate Court has the same powers as are conferred by the Code on Courts of original jurisdiction in respect of suits instituted therein. Such a power can be exercised by the appellate Court "as nearly as may be" exercised by the trial Court under the Code. If the powers conferred upon the trial Court are under a specified statute and not under the Code, it has to be ascertained as to whether such a power was intended to be exercised by the appellate Court as well. Such a position can be ascertained by having a reference to the specified law by keeping in mind the legislative intention of conferment of power on the appellate Court either expressly or by necessary implication." No. 9130 of 2003 (arising out of SLPSpecial Leave Petition A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. (C) No. 13858 of 2003), Decided on : 18-11-2003.
Civil Procedure Code, 1908—Order 18, Rule 4—Examination of witness—Chief Examination by way of affidavit—Object of—Order 18, Rule 4 intended to curtail timeTime χρόνος. Judicial: Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) यमः , पुं, (यमयति नियमयति जीवानां फलाफलमिति । यम् + अच् । विश्वे च कलयत्येव यः सर्व्वायुश्च सन्ततम् । अतीव दुर्निवार्य्यञ्च तं कालं प्रणमाम्यहम् ॥यमैश्च नियमैश्चैव यः करोत्यात्मसंयमम् । स चादृष्ट्वा तु मां याति परं ब्रह्म सनातनम् ॥ taken by Court in examining a witness in chief.
We may notice that Rule 4 of Order 18 was amended with effect from 1-7-2002 specifically provided thereunder that the examination-in-chief in every case shall be on affidavit. Rule 5 of Order 18 had been incorporated even prior to the said amendment.
Counsel for the Parties:
Rajan Narain, Ms. Sushma Sharma, Ms. Puja Sharma, Ms. Meghalee Barthakur, Ms. Mukta Chopra, Ms. Pallavi Barua, Advocates for Appellant.
F. S. Nariman, H. N. Salve, Sr. Advocates, G. R. Joshi, R. J. S. Mistry, Ms. Puja Jain, A. Khandsahib, Avijit Bhattacharjee, Madhavan Srivastav and Ms. Meenakshi Sakhardande, Advocates with them for Respondent.
JudgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
S. B. Sinha, J—Leave granted.
2. Interpretation of Order 18 Rules 4 and 5 of the Code of Civil ProcedureCode of Civil Procedure Main Sections: Filing, Summons, Trial, Judgment, Execution, Appeal, Interim Applications, Interim Injunction, Cost, Notice Rules: Order VII. Statutory Drafting and Forms: General Pleding falls for consideration in this appeal which arises out of a judgment and order dated 3-7-2003 passed by the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. of Judicature at Bombay in W. P. No. 2428/2003.
3. The said question arises in the following circumstances.
The respondent herein filed the suit No. 156/169 of 2001 in the Court of Small Causes Bombay against the appellant for eviction of the appellant inter alia on the ground that the provisions of Maharashtra Rent Control Act, 1999 had no application in relation to the premises in question. An affidavit was filed by the respondent herein purporting to be his examination-in-chief to be taken on evidence in the suit.
4. An application was filed by the appellant herein objecting to the said affidavit being accepted inter alia on the ground that the decree which may be passed in suit being an appealable one, Order 18 Rule 5 of the Code of Civil Procedure will be applicable. By reason of an order dated 17th February, 2003, the learned Trial Judge rejected the said application of the appellant holding;
“The Court had already acted upon as per the provisions of Order 18 Rule 4 of C. P. C. (amended) which authorizes the Court to receive the evidence on affidavit in any matterMatter Normal matter is made of molecules, which are themselves made of atoms. Inside the atoms, electrons are spinning around the nucleus. The nucleus is made of protons and neutrons. Inside the protons and neutrons, exist indivisible quarks, like the electrons. All matter around us is made of elementary particles. ( building blocks of matter > quarks and leptons). All stable matter in the universe is made from particles that belong to the first-generation. Fundamental forces result from the exchange of force-carrier particles, which belong to a broader group called “bosons”. The strong force is carried by the “gluon”, electromagnetic force is carried by the “photon.” which includes the appealable order. In the given circumstances the affidavit need not be returned back to plaintiffs and be asked to give oral evidence in the matter.
Besides the factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. that aspect as above and the legal position observed by me, I have also come across one matter of this Court only wherein on same facts the matter had been taken to the Hon’ble High Court and the Hon’ble High Court had directed this Court to accept the evidence on affidavit. I have also come across certain observations made by the Small Cause Court supporting the view that it is legal to accept evidence on affidavit in any matter. Hence I do not think I should discuss all the authorities cited by defendants advocate. Hence I proceed to pass following order.
Order
Application stands rejected. Matter is adjourned to 4-3-2002 at 10.30 a.m. for cross examination of plaintiffs.”
5. Being aggrieved the appellant preferred a writ petitionPetition αναφορά > παρακαλώ (Prayer) thereagainst which was dismissed by reason of the impugned orderImpugned order Order under challenge holding :
“Heard. The only grievance made in this Petition is that the Court below has allowed the Plaintiff to receive evidence on affidavit. Learned Counsel contends that, that will not be permissible in view of the provisions contained in order XVIII Rule 5 of the Code of Civil Procedure. I am not inclined to interfere with the discretionary order passed by the Court below. Besides, I find force in the objection taken on behalf of the Respondents that the issue is already concluded and answered by the decision of this Court dated 20th March, 2003 in writ petition No. 708 of 2003. To my mindMind We know nothing about its origin, growth, or demise. Where it lives, can it live without a brain? Possibly, the mind is the soul and spirit. See Consciousness, no prejudice will be caused to the petitioner, if the view as taken by the Trial CourtTrial court Court of original Jurisdiction > the court which examines the evidences for the first time. was to be upheld because the Petitioner being Defendant would get opportunity to cross-examine the Plaintiff and Plaintiff’s witnesses.
Hence, no reason to interfere. Rejected.”
6. The appellant is in appeal before us aggrieved thereby.
7. Mr. Rajan Narain, the learned counsel appearing on behalf of the appellant would submit that Order 18, Rule 4 and Order 18, Rule 5 of the Code of Civil Proceure should be read harmoniously and so read, it must be held that Order 18, Rule 4 will have no application in the appealable cases; and as logical corollary thereof the Court must examine all the witnesses in Court. In support of the said contention, strong reliance has been placed on Laxman Das vs. Deoji Mal and others, AIR 2003 Rajasthan 74.
8. Mr. Naraiman, the learned senior counsel appearing on behalf of the respondent, on the other hand, would submit that a bare perusal of the provisions contained in Order 18 Rule 4 of the Code of Civil Procedure would show that an affidavit incorporating examination-in-chief of a witness has to be filed in every case and only in the event the said witness is required to be cross examined, he would be produced in Court.
9. The learned counsel would urge that the Code of Civil Procedure Amendment Act, 1976 was enacted with a view to do away with the unnecessary wastage of time which may be taken for examination of a witness.
10. Mr. Nariman would urge that Order 18, Rule 5 should be read with Order 18, Rule 13 so as to decipher the difference between the cases where an appeal is allowed and where appeal is not allowed. Order 18, Rule 5, the learned counsel would submit, merely lays down the procedure for taking the evidence of the witness. In support of the said contention, reliance has been placed on F. D. C. Ltd. vs. Federation of Medical Representatives Association IndiaIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more (FMRAI) and others (AIR 2003 Bombay 371).
11. Order 18, Rule 4 as it originally stood reads as under :
“4. WITNESSES TO BE EXAMINED IN OPEN COURT.
The Evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.”
12. Order 18, Rules 4 (1), (2) and (3) as they now stand read 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 spplied to the opposite party by the party who calls him for evidence.
Provided that where documentsDocument It means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records. (Bharatiya Sakshya Adhiniyam 2023) are filed and the parties rely upon the documents, the proofProof Mathematical proof, Direct proof, Proof by contraposition, Proof by contradiction, Proof by construction, Proof by exhaustion, Closed chain inference, Probabilistic proof, Combinatorial proof, Nonconstructive proof, Computer-assisted proofs. 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 Commissioner appointed by it :
Provided that the Court may, while appointing a commission under this sub-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 either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the 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.”
13. The other sub-rules of Rule 4 of Order 18 provide for other and further procedures as regard examination of witness.
14. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction with the cases where appeal is not allowed as envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5, therefore, envisages a situation where the Court is required to take down an evidence in the manner laid down therein which would mean that where cross-examination or re-examination of the witness is to take place in the Court.
15. The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which ‘evidence’ is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.
16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness in chief. sub-Rule (2) of Rule 4 of Order 18 of Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the court or the Commissioner appointed by it.
17. We may notice that Rule 4 of Order 18 was amended with effect from 1-7-2002 specifically provided thereunder that the examination-in-chief in every case shall be on affidavit. Rule 5 of Order 18 had been incorporated even prior to the said amendment.
18. Rule 4 of Order 18 does not make any distinction between an appealable and non-appealable cases so far mode of recording evidence is concerned. Such a difference is to be found only in rules 5 and 13 of Order 18 of the Code.
19. It, therefore, appears that whereas under the unamended rule, the entire evidence was required to be adduced in Court, now the examination in chief of a witness including the party to a suit is to be tendered on affidavit. The expressions “in every case” are significant. What, thus, remains, viz., cross-examination or re-examination in the appealable cases will have to be considered in the manner laid down in the Rules, subject to the other sub-rules of Rule 4.
20. Rule 5 of Order 18 speaks of the other formalities which are required to be complied with. In the cases, however, where an appeal is not allowed, the procedures laid down in Rule 5 are not required to be followed.
21. In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon’s case (3 Co. Rep. 7a, 76 ER 637) shall apply. Such an amendment was made by the Parliament consciouslyConscience The mind (depending on bio-electricity) can not work without memory and information, but consciousness can. Dreams come from consciousness. Conscience, in its moral sense, is the innate human ability to discern right from wrong and, based on this awareness, to guide, monitor, evaluate, and regulate one’s actions accordingly. Read: Mind is man. and, thus, full effect thereto must be given.
22. In Halsbury’s Laws of EnglandEngland 47 boroughs, 36 counties, 29 London boroughs, 12 cities and boroughs, 10 districts, 12 cities, 3 royal boroughs boroughs: Barnsley, Blackburn with Darwen, Blackpool, Bolton, Bournemouth, Bracknell Forest, Brighton and Hove, Bury, Calderdale, Darlington, Doncaster, Dudley, Gateshead, Halton, Hartlepool, Kirklees, Knowsley, Luton, Medway, Middlesbrough, Milton Keynes, North Tyneside, Oldham, Poole, Reading, Redcar and Cleveland, Rochdale, Rotherham, Sandwell, Sefton, Slough, Solihull, Southend-on-Sea, South Tyneside, St. Helens, Stockport, Stockton-on-Tees, Swindon, Tameside, Thurrock, Torbay, Trafford, Walsall, Warrington, Wigan, Wirral, Wolverhampton counties (or unitary authorities): Bedfordshire, Buckinghamshire, Cambridgeshire, Cheshire, Cornwall, Cumbria, Derbyshire, Devon, Dorset, Durham, East Sussex, Essex, Gloucestershire, Hampshire, Herefordshire, Hertfordshire, Isle of Wight, Kent, Lancashire, Leicestershire, Lincolnshire, Norfolk, North Yorkshire, Northamptonshire, Northumberland, Nottinghamshire, Oxfordshire, Shropshire, Somerset, Staffordshire, Suffolk, Surrey, Warwickshire, West Sussex, Wiltshire, Worcestershire, volume 44 (1), fourth reissue, para 1474, PP 906-07, it is stated :
“Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that parliament intends that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon’s case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutesStatute A formal written legal enactment by a sovereign law-making body (Νόμος) > National Constitutions > National Laws > Indian Laws in general (be they penal or beneficial, restrictive or enlarging of the common lawCommon law The legal system that originated in England and is now in use in the United States. It is based on court decisions rather than statutes passed by the legislature.), four things are to be discerned and considered :
(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common law did not provide;
(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
(4) the true reason of the remedy,
and then the officeOffice Αξίωμα > Officer > Office-bearer (1593) > Opus, officium, ex officio (Latin). Box-office (Cash Box). of all the judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit);
and
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good).”
23. Heydon’s Rule has been applied by this Court in a large numberNumber Αριθμός of cases in order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise covered the field. [See for example, Smt. Pek Kalliani Amma and others vs. K. Devi and others, (AIR 1996 SC 1963) ; BengalWest Bengal Bengal derived its name from Vedic king Vanga (Son of Vali). Banga was part of the Magadha Kingdom of Jarasandha and later Nanda dynasty. After the Garuda Dynasty ( history lost) the region was named Gouda Bhumi. Districts North 24 Parganas South 24 Parganas Bankura Birbhum CoochBihar Dakshin Dinajpur Darjeeling Hooghly Howrah Jalpaiguri Jhargram Kalimpong Kolkata Malda Murshidabad Nadia Paschim Burdwan Purba Burdwan Paschim Medinipur Purba Medinipur Purulia Uttar Dinajpur Alipurduar Govt Site Calcutta High Court KMC Immunity Co. Ltd. vs. State of BiharBihar 38 Districts > Araria Arwal Aurangabad Banka Begusarai Bhagalpur Bhojpur Buxar Darbhanga Gaya Gopalganj Jamui Jehanabad Kaimur (Bhabua) Katihar Khagaria Kishanganj Lakhisarai Madhepura Madhubani Munger Muzaffarpur Nalanda Nawada Pashchim Champaran Patna Purbi Champaran Purnia Rohtas Saharsa Siwan Supaul Vaishali Samastipur Saran Sheikhpura Sheohar Sitamarhi and others, AIR 1955 SC 661; and Goodyear India Ltd. vs. State of Haryana and Another, AIR 1990 SC 781].
It is now well-settled that for the purpose of interpretation of statuteStatute A formal written legal enactment by a sovereign law-making body (Νόμος) > National Constitutions > National Laws > Indian Laws the same has to be in its entirety.
24. Furthermore, in a case of this nature, principles of purposive construction must come into play. (See IndianIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more Handicrafts Emporium vs. Union of India (2003) 7 SCC 589.
25. In Chief JusticeJustice δικαιοσύνη > judicature ( δικαιοσύνη) > judge (δικαστής / κριτής). The whole purpose of Plato`s Republic is to search for Justice. The purpose of Justice is to establish a perfect State. The State of happiness (ευτυχία) of A. P. vs. L. V . A. Diskhitulu (1979) 2 SCC 34 this Court observed :
“The primary principle of interpretation is that a Constitutional or statutory provision should be construed “according to the intent of they that made it” (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms , the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
26. In Kehar Singh vs. State (Delhi Admn.)(1988) 3 SCC 609 , this Court held :
“…….But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every wordWord Λόγος , every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motiveMotive Intending to collect money he started to motivate the people to donate to him. Intention comes first then motive to take the course. Motive is action > Reason, Root, Rationale, Purpose, Excuse. Section 4 BSA (Admission/Confession of Motive-S 22 BSA) force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the lawLaw νόμος: Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article as a whole and to avoid undersirable consequences.”
27. In DistrictDistrict India has 800 districts under 29 federal states and 8 union territories. Adilabad Agar-Malwa Agra Ahilyanagar Ahmedabad Aizawl Ajmer Akola Alappuzha Aligarh Alipurduar Alirajpur Alluri Sitharama Raju Almora Alwar Ambala Ambedkar Nagar Amethi Amravati Amreli Amritsar Amroha Anakapalli Anand Ananthapuramu Anantnag Anjaw Annamayya Anugul Anuppur Araria Ariyalur Arvalli Arwal Ashoknagar Auraiya Aurangabad Ayodhya Azamgarh Bagalkote Bageshwar Baghpat Bahraich Bajali Baksa Balaghat Balangir Baleshwar Ballari Ballia Balod Balodabazar-Bhatapara Balotra Balrampur Balrampur-Ramanujganj Banas Kantha Banda Bandipora Banka Bankura Banswara Bapatla Bara Banki Baramulla Baran Bareilly Bargarh Barmer Barnala Barpeta Barwani Bastar Basti Bathinda Beawar Beed Begusarai Belagavi Bemetara Bengaluru Rural Bengaluru Urban Betul Bhadohi Bhadradri Kothagudem Bhadrak Bhagalpur Bhandara Bharatpur Bharuch Bhavnagar Bhilwara Bhind Bhiwani Bhojpur Bhopal Bichom Bidar Bijapur Bijnor Bikaner Bilaspur Bilaspur Birbhum Bishnupur Biswanath Bokaro Bongaigaon Botad Boudh Budaun Budgam Bulandshahr Buldhana Bundi Burhanpur Buxar Cachar Central Chamarajanagar Chamba Chamoli Champawat Champhai Chandauli Chandel Chandigarh Chandrapur Changlang Charaideo Charkhi Dadri Chatra Chengalpattu Chennai Chhatarpur Chhatrapati Sambhajinagar Chhindwara Chhotaudepur Chikkaballapura Chikkamagaluru Chirang Chitradurga Chitrakoot Chittoor Chittorgarh Chumoukedima Churachandpur Churu Coimbatore Cooch Behar Cuddalore Cuttack Dadra And Nagar Haveli Dahod Dakshin Bastar Dantewada Dakshin Dinajpur Dakshina Kannada Dhenkanal Dholpur Dhubri Dhule Dibang Valley Dibrugarh Didwana-Kuchaman Dima Hasao Dimapur Dindigul Dindori Diu Doda Dr. B.R. Ambedkar Konaseema Dumka Dungarpur Durg East East Garo Hills East Godavari East Jaintia Hills East Kameng East Khasi Hills East Siang East Singhbum Eastern West Khasi Hills Eluru Ernakulam Erode Etah Etawah Faridabad Faridkot Farrukhabad Fatehabad Fatehgarh Sahib Fatehpur Fazilka Ferozepur Firozabad Gadag Gadchiroli Gajapati Ganderbal Gandhinagar Ganganagar Gangtok Ganjam Garhwa Gariyaband Gaurela-Pendra-Marwahi Gautam Buddha Nagar Gaya Ghaziabad Ghazipur Gir Somnath Giridih Goalpara Godda Golaghat Gomati Gonda Gondia Gopalganj Gorakhpur Gumla Guna Guntur Gurdaspur Gurugram Gwalior Gyalshing Hailakandi Hamirpur Hamirpur Hanumakonda Hanumangarh Hapur Harda Hardoi Haridwar Hassan Hathras Haveri Hazaribagh Hingoli Hisar Hnahthial Hojai Hooghly Hoshiarpur Howrah Hyderabad Idukki Imphal East Imphal West Indore Jabalpur Jagatsinghapur Jagitial Jaipur Jaisalmer Jajapur Jalandhar Jalaun Jalgaon Jalna Jalore Jalpaiguri Jammu Jamnagar Jamtara Jamui Jangoan Janjgir-Champa Jashpur Jaunpur Jayashankar Bhupalapally Jehanabad Jhabua Jhajjar Jhalawar Jhansi Jhargram Jharsuguda Jhunjhunu Jind Jiribam Jodhpur Jogulamba Gadwal Jorhat Junagadh Kabeerdham Kachchh Kaimur (Bhabua) Kaithal Kakching Kakinada Kalaburagi Kalahandi Kalimpong Kallakurichi Kamareddy Kamjong Kamle Kamrup Kamrup Metro Kancheepuram Kandhamal Kangpokpi Kangra Kannauj Kanniyakumari Kannur Kanpur Dehat Kanpur Nagar Kapurthala Karaikal Karauli Karbi Anglong Kargil Karimganj Karimnagar Karnal Karur Kasaragod Kasganj Kathua Daman Damoh Dangs Darbhanga Darjeeling Darrang Datia Dausa Davanagere Deeg Dehradun Deogarh Deoghar Deoria Devbhumi Dwarka Dewas Dhalai Dhamtari Dhanbad Dhar Dharashiv Dharmapuri Dharwad Dhemaji Katihar Katni Kaushambi Kendrapara Kendujhar Keyi Panyor Khagaria Khairagarh-Chhuikhadan-Gandai Khairthal-Tijara Khammam Khandwa (East Nimar) Khargone (West Nimar) Khawzawl Kheda Kheri Khordha Khowai Khunti Kinnaur Kiphire Kishanganj Kishtwar Kodagu Koderma Kohima Kokrajhar Kolar Kolasib Kolhapur Kolkata Kollam Kondagaon Koppal Koraput Korba Korea Kota Kotputli-Behror Kottayam Kozhikode Kra Daadi Krishna Krishnagiri Kulgam Kullu Kumuram Bheem Asifabad Kupwara Kurnool Kurukshetra Kurung Kumey Kushinagar Lahaul And Spiti Lakhimpur Lakhisarai Lakshadweep District Lalitpur Latehar Latur Lawngtlai Leh Ladakh Leparada Lohardaga Lohit Longding Longleng Lower Dibang Valley Lower Siang Lower Subansiri Lucknow Ludhiana Lunglei MAUGANJ Madhepura Madhubani Madurai Mahabubabad Mahabubnagar Mahasamund Mahendragarh Mahesana Mahisagar Mahoba Mahrajganj Maihar Mainpuri Majuli Malappuram Malda Malerkotla Malkangiri Mamit Mancherial Mandi Mandla Mandsaur Mandya Munger Murshidabad Muzaffarnagar Muzaffarpur Mysuru Nabarangpur Nadia Nagaon Nagapattinam Nagarkurnool Nagaur Nagpur Nainital Nalanda Nalbari Nalgonda Namakkal Namchi Namsai Nanded Nandurbar Nandyal Narayanpet Narayanpur Manendragarh-Chirmiri-Bharatpur(M C B) Mangan Mansa Marigaon Mathura Mau Mayiladuthurai Mayurbhanj Medak Medchal Malkajgiri Meerut Meluri Mirzapur Moga Mohla-Manpur-Ambagarh Chouki Mokokchung Mon Moradabad Morbi Morena Mulugu Mumbai Mumbai Suburban Mungeli Narmada Narmadapuram Narsimhapur Nashik Navsari Nawada Nayagarh Neemuch New Delhi Nicobars Nirmal Niuland Niwari Nizamabad Noklak Noney North North 24 Parganas North And Middle Andaman North East North Garo Hills North Goa North Tripura North West Ntr Nuapada Nuh Pakke Kessang Pakur Pakyong Palakkad Palamu Palghar Pali Palnadu Palwal Panch Mahals Panchkula Pandhurna Panipat Panna Papum Pare Parbhani Parvathipuram Manyam Paschim Bardhaman Paschim Medinipur Pashchim Champaran Patan Pathanamthitta Pathankot Patiala Patna Pauri Garhwal Peddapalli Perambalur Peren Phalodi Phek Pherzawl Pilibhit Pithoragarh Poonch Porbandar Prakasam Pratapgarh Pratapgarh Prayagraj Puducherry Pudukkottai Pulwama Pune Purba Bardhaman Ranipet Ratlam Ratnagiri Rayagada Reasi Rewa Rewari Ri Bhoi Rohtak Rohtas Rudraprayag Rupnagar S.A.S Nagar Sabar Kantha Sagar Saharanpur Saharsa Sahebganj Saitual Sakti Salem Salumbar Samastipur Samba Purba Medinipur Purbi Champaran Puri Purnia Purulia Rae Bareli Raichur Raigad Raigarh Raipur Raisen Rajanna Sircilla Rajgarh Rajkot Rajnandgaon Rajouri Rajsamand Ramanagara Ramanathapuram Ramban Ramgarh Rampur Ranchi Ranga Reddy Sambalpur Sambhal Sangareddy Sangli Sangrur Sant Kabir Nagar Saraikela Kharsawan Saran Sarangarh-Bilaigarh Satara Satna Sawai Madhopur Sehore Senapati Seoni Sepahijala Serchhip Shahdara Shahdol Shahid Bhagat Singh Nagar Shahjahanpur Shajapur Shamator Shamli Sheikhpura Sheohar Sheopur Shi Yomi Shimla Shivamogga Shivpuri Shopian Shrawasti Siaha Siang Siddharthnagar Siddipet Sidhi Sikar Simdega Sindhudurg Singrauli Sirmaur Sirohi Sirsa Sitamarhi Sitapur Sivaganga Sivasagar Siwan Solan Solapur Sonbhadra Sonepur Sonipat Sonitpur Soreng South South 24 Parganas South Andamans South East South Garo Hills South Goa South Salmara Mancachar South Tripura South West South West Garo Hills South West Khasi Hills Sri Muktsar Sahib Sri Potti Sriramulu Nellore Sri Sathya Sai Srikakulam Srinagar Sukma Sultanpur Sundargarh Supaul Surajpur Surat Surendranagar Surguja Suryapet Tamenglong Tamulpur Tapi Tarn Taran Tawang Tehri Garhwal Tengnoupal Tenkasi Thane Thanjavur The Nilgiris Theni Thiruvallur Thiruvananthapuram Thiruvarur Thoothukkudi Thoubal Thrissur Tikamgarh Tinsukia Tirap Tiruchirappalli Tirunelveli Tirupathur Tirupati Tiruppur Tiruvannamalai Tonk Tseminyu Tuensang Tumakuru Udaipur Udalguri Udham Singh Nagar Udhampur Udupi Ujjain Ukhrul Warangal Wardha Washim Wayanad West West Garo Hills West Godavari West Jaintia Hills West Kameng West Karbi Anglong West Khasi Hills West Siang West Singhbhum West Tripura Wokha Y.S.R. Yadadri Bhuvanagiri Yadgir Yamunanagar Yavatmal Zunheboto Umaria Una Unakoti Unnao Upper Siang Upper Subansiri Uttar Bastar Kanker Uttar Dinajpur Uttara Kannada Uttarkashi Vadodara Vaishali Valsad Varanasi Vellore Vidisha Vijayanagara Vijayapura Vikarabad Viluppuram Virudhunagar Visakhapatnam Vizianagaram Wanaparthy Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358, this Court stated :
“The legislation is primarily directed to the problems before the legislature based on information derived from past and present experienceExperience εμπειρία. It may also be designed by the use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite references are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intentionIntention This means to “have in mind.” A plant to do a thing (Planning: premeditation is evident through evidence of active preparation, e.g., hoarding pills, purchase of weapon). It refers to the aim, purpose, or goal of the behavior, e.g., to seek an end to/solution. A conscious mental process to move precedes the brain’s preparation for movement. i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.”
28. In East India Hotels Ltd. vs. Union of India (2001) 1 SCC 284 this Court observed :
“an act has to be read as a whole, the different provisions have to be harmonized and the effect has to be given to all of them.”
29. In Laxman Das (supra) the Rajasthan High Court held :
“Therefore, in view of the above, the words “in every case”, contained in R.4 of O. 18 have to be understood in a limited sense that every case wherein the ultimate order is not appealable, and by no means, it can take in its ambit the orders which would be appealable. In view of above, the position which emerges is that in cases where the final orders to be passed by the Court would not be appealable, the discretion has been conferred upon the Court to accept the examination-in-chief in the form of affidavit as provided under O.18, R. 4; or to record the substance thereof by the Court itself as provided under O.18, R. 13. But in cases where orders would be appealable, the evidence is to be recorded strictly as provided under O. 18, R. 5.”
30. On the other hand, in F. D. C. Ltd. (Supra) it has been held:
“The harmonious reading of R. 4 and 5 of O. XVIII would reveal that while in each and every case of recording of evidence, the examination-in-chief is to be permitted in the form of affidavit and while such evidence in the form of affidavit being taken on record, the procedure described under R.5 is to be followed in the appealable cases. In non-appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in R. 13 of O. XVIII. In other words, mere production of the affidavit by the witness will empower the Court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to R.13 of O. XVIII in all cases except in the appealable cases wherein it will be necessary for the Court to record evidence of production of the affidavit in respect of examination-in-chief by asking the deponent to produce such affidavit in accordance with R.5 of O. XVIII. Undoubtedly, in both the cases, for the purpose of cross-examination, the Court has to follow the procedure prescribed under sub-rule (2) of R.4 read with R. 13 in case of non-appealable cases and the procedure prescribed under sub-rule (2) of R.4 read with R. 5 in appealable cases.
In other words, in the appealable cases though the examination -in -chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under R. 5. In non appealable cases, however, the affidavit in relation to examination-in-chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to R.13 of O. XVIII. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of R.5, where as in case of non-appealable cases the Court would be empowered to exercise its powerPower The amount of energy transferred or converted per unit of time. In the International System of Units, the unit of it is the watt, equal to one joule per second. The capacity of energy infrastructure is rated using watts, which indicate its potential to supply or consume energy in a given period of time. A Power-plant rated at 100 MW has the potential to produce 100 MWh if it operates for one hour. yunder R.13.”
31. We agree with the view of the Bombay High Court.
32. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever the examination-in-chief is taken on an affidavit and in the event, he desires to cross-examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court.
33. Applying the aforementioned principles of interpretation of statute, we have no doubt in our mind that Order 18, Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and as Order 18, Rule 5 cannot be read as an exception to Order 18 Rule 4.
34. For the reasons aforementioned there is no merit in this appeal, which is dismissed accordingly. However, there shall be no order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..