AMEER TRADING CORPORATION LTD.versusSHAPOORJI DATA PROCESSING LTD.

A                    AMEER TRADING CORPORATION LTD.
                                          v.
                      SHAPOORJI DATA PROCESSING LTD.

                               NOVEMBER 18, 2003

B       [V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]


         Code of Civil Procedure, 1908:

          Order 18 Rule 4 (as amended)-Examination-in-Chief-Recording of
C evidence in every case-By affidavit-Held: Order 18 Rule 4 does not make
    any distinction between appealab/e and non-appea/ab/e cases-Examination-
    in-Chief of a witness is to be tendered on affidavit whether the case is
    appea/able or not.

         Interpretation of Statutes:
D
          Purposive construction-For the purpose of interpretation of statutes
    the same has to be in its entirety.

          Words and Phrases:

E        "In every case "-Meaning of-In the context of Order 18 Rule 4 of the
    Code of Civil Procedure, 1908.

        The respondent filed a suit in the Court of Small Causes for eviction of
  the appellant from the suit premises. The respondent filed an affidavit under
F Order 18 Rule 4 of the Code of Civil Procedure, 1908 being his examination-
  in-chief to be taken as evidence in the suit.

          The appellant filed an application objecting to the said affidavit on the
    ground that the decree, which might be passed in the suit being an appealable
    one, Order 18 Rule 5 of the CPC, would be applicable and, therefore, the
G   respondent was required to be examined in open court. The trial court rejected
    the application and the High Court upheld this order. Hence the appeal.

          Dismissing the appeal, the Court

          HELD: I.I. Order 18 Rule 4 of the Code of Civil Procedure, 1908 does
H                                        634
            AMEER TRADING CORPN. LTD. 1·. SHAPOORJ!DATA PROCESSING LTD.      63 5
  not make any distinction between appealable and non-appealable cases so far        A
  as the mode of recording of evidence is concerned. Such a difference is to be
  found only in Rules 5 and 13 of Order 18 of the Code. J640-CJ

         1.2. The examination-in-chief of a witness including the party to a suit
  is to be tendered on affidavit. The expression "in every case" occurring in
• Order 18 Rule 4 is significant. What, thus, remains, viz., cross-examination       B
  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. The
  amendment to the Code was made by the Parliament consciously and, thus,
  full effect thereto must be given. [640-D-E, Fl

        2. Heydon's Rule has been applied by this Court in a large number of         C
  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.
                                                                        [641-FJ

       Smt. PEK Kalliani Amma v. K. Devi. AIR (1996) SC 1963; Bengal                 D
  Immunity Co. Ltd. v. State of Bihar, AIR (1956) SC 661 and Goodyear India
  Ltd v. State ofHaryana, AIR (1990) SC 781, relied on.

        Heydon 's case: 3 Co Rep. 7a, 76 ER 637, referred to.

        3. For the purpose of interpretation of a statute the same has to be in      E
  its entirety. The principles of purposive construction must come into play.
                                                                    [641-G-HJ

        Indian Handicrafts Emporium v. Union of India, [2003) 7 SCC 589,
  relied on.

       Chiefjustice ofA.P. v. L. V.A. Dikshitulu, [1979) 2 SCC 34; Kehar Singh
                                                                                     F
 v. State (Delhi Admn.) AIR (1988) SC 1883; District Mining Officer v. Tata
 Iron and Steel Co. JT(2001) (6) 183 and East India Hotels Ltd, v. Union of
 India (2001 J SCC 284, referred to.

        4.1. Presence of a party during examination-in-chief is not imperative.      G
 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 if the examination-in-chief
 is taken on an affidavit and in the event, he desires to cross-examine the said     H
     636                     SUPREME COURT REPORTS [20031 SUPP. 5 S.C.R.

A 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 a witness in open court. (644-G-H; 645-A(

           F.D.C. ltd. v. Federation of Medical Representatives Association India,
B (FMRAI) AIR (2003) Born 371, approved.
           laxman Das v. Deoji Mal, AIR (2003) Raj 74, impliedly overruled

           4.2. Applying the principles of interpretation of statute, there is no doubt
     that Order 18 Rules 4 and 5 are required to be harmoniously constructed.
C    Both the provisions are required to be given effect to and Order 18 Rule 5
     cannot be read as an exception to Order 18 Rule 4. [645-BJ

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9130 of2003.

          From the Judgment and Order dated 3.7.2003 of the Bombay High Court
D    in W.P. No. 2428 of2003.

          Rajan Narain, Ms. Sushma Sharma, Ms. Puja Sharma, Ms. Meghalee
     Barthakur, Ms. Mukta Chopra and Ms. Pallavi Barua for the Appellant.

          F.S. Nariman, H.N. Salve, G.R. Joshi, R.J.S. Mistry, Ms. Puja Jain, A.
E    Khansahib, Avijit Bhattacharjee, Madhavan Srivastav and Ms. Meenakshi
     Sakhardande for the Respondent.

           S.B. SINHA, J. Leave granted.

            Interpretation of Order I 8 Rules 4 and 5 of the Code of Civil Procedure
F    falls for consideration in this appeal which arises out of a judgment and order
     dated 3.7.2003 passed by the High Court of Judicature at Bombay in W.P. No.
     242812003.

           The said question arises in the following circumstances.

G.         The respondent herein filed the suit No. 156/169 of2001 in the Court
     of Small Cause 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-
H    in-chief to be taken on evidence in the suit.
    AMEER TRADING CORPN. LTD. v. SHAPOORJI DATA PROCESSING LTD. [SINHA, J.] 63 7

      An application was filed by the appellant herein objecting to the said A
affidavit being accepted inter a/ia 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:
                                                                                   B
       "The Court had already acted upon as per the provisions of Order 18
       Rule 4 ofC.P.C. (amended) which authorizes the court to receive the
       evidence on affidavit in any matter 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.        C
       Besides the fact 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 D
       made by the Small Causes 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                                      E
      Application stands rejected. Matter is adjourned to 4.3.2002 at 10.30
a.m. for cross examination of Plaintiffs."

     Being aggrieved the appellant preferred a writ petition thereagainst
which was dismissed by reason of the impugned order holding :             F
       "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      G
       passed by the Court below. Besides, I find force in the objection taken
       on behalf of the Respondents that the issue is already cone luded and
       answered by the decision of this Court dated 20th March, 2003 in Writ
       Petition No. 708 of 2003. To my mind, no prejudice will be caused to
       the Petitioner, ifthe view as taken by the Trial Court was to be upheld
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    638                    SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A          because the Petitioner being Defendant would get opportunity to
           cross-examine the Plaintiff and Plaintiffs witnesses.

              Hence, no reason to interfere. Rejected."

          The appellant is in appeal before us aggrieved thereby. Mr. Rajan
B 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 Procedure 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 v. Deoji Mal and
C   Ors., AIR (2003) Rajasthan 74.

          Mr. Nariman, 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
D   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.

         The learned counsel would urge that the Code of Civil Procedure
    Amendment Act, 1976 was enacted with a view to do away with the
E   unnecessary wastage of time which may be taken for examination of a witness.

           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
F   of the witness. In support of the said contention, reliance has been placed
    on F.D.C. Ltd. v. Federation of Medical Representatives Association India
    (FMRAI) and Ors., AIR (2003) Bombay 371.

          Order 18 Rule 4 as it originally stood reads as under:

G           "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."

H         Order 18 Rules 4 (!), (2), and (3) as they now stand read as under:
    AMEER TRADING CORPN. LTD. v. SHAPOORJIDATA PROCESSING LTD. [SINHA, J.] 639

       "4. Recording ofevidence.-(!) In every case, the examination-in-chief A
       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. B

           (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
                                                                                 c
       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 D
       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."
                                                                                 E
      The other sub-rules of Rule 4 of Order 18 provide for other and further
procedures as regard examination of witness.

      Rule 5 refers to the evidence which is required to be taken in cases
where the appeal is allowed in contra-distinction with the cases where appeal
is not allowed as envisaged in Rule 13 of Order 18 of the Code of Civil F
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.

       The examination of a witness would include evidence-in-chief, cross-      G
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.
                                                                                 H
    640                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A          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.

B          We may notice that Rule 4 of Order 18 was amended with effect from
    I. 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.

          Rule 4 of Order 18 does not make any distinction between an appealable
C 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.

          It, therefore, appears that whereas under the unamended rule, the entire
D 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 tile other sub.
    rules of Rule 4.
E
         Rule 5 of Order 18 speaks of tlte other formalities which are required to
    be complied with. In the cases, however, where an appeal is oot allowed, the
    procedures laid down in Rule 5 are not required to be followed.

          In a situation of this nature, the doctrine of suppression of mischief rule
F   as adumbrated in Heydon 's case [3 Co Rep 7a, 76 ER 637) shall apply. Such
    an amendment was made by the Parliament consciously and, thus, full effect
    thereto must be. given.

         In Halsbury's Laws ofEngland, Volume 44(1), fourth reissue, para 1474,
    pp 906-07, it is stated :
G
                "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
H
     AMEER TRADING CORPN. LTD. v. SHAPOORJI DATA PROCESSING LTD. [SINHA, J .] 64 J

        remedy provided by it in such a way as to suppress that mischief. The        A
        doctrine originates in Heydon 's case where the Barons of the Exchequer
        resolved that for the sure and true interpretation of all statutes in
        general (be they penal or beneficial, restrictive or enlarging of the
        common law), four things are to be discerned and considered :

       (!)   what was the common law before the making of the Act;                   B
       (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
                                                                                     c
       (4)   the true reason of the remedy,

        and then the office of all the judges is always to make such construction
        as shall :

             (a) suppress the mischief and advance the remedy; and
                                                                                     D
             (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           E
                 public good)."

      Heydon' s Rule has been applied by this Court in a large number 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 Kal/iani Amma and Ors. v. K. Devi and Ors., AIR                F
(1996) SC 1963; Bengal Immunity Co. Ltd v. State of Bihar and Ors, AIR
(1955) SC 661 and Goodyear India Ltd v. State of Haryana and Anr., AIR
(1990) SC 781).

      It is now well-settled that for the purpose of interpretation of statute       G
the same has to be in its entirety.

     . Furthermore, in a case of this nature, principles of purposive construction
must come into play. (See Indian Handicrafts Emporium v. Union of India,
[2003J 7 sec ·589).

                                                                                     H
    642                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A        In Chief Justice of A.P. v. L. V.A. Dikshitulu, [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
B           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
c           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
D           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. In Kehar Singh v. State (Delhi Admn.), AIR (1988) SC
             1883 : [1988] 3 SCC 609, this Court held:
E
            " ... 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 word, every section and every provision. We examine the Act
            as a whole. We examine the necessity which gave rise to the Act. We
F           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
            motive force behind. We will consider the provisions in the
G           circumstances to which they owe their origin. We will consider the
            provisions to ensure coherence and consistency within the law as a
            whole and to avoid undesirable consequences."

          Jn District Mining Officer v. Tata Iron & Steel Co., JT (2001) 6 SC 183:
    [200 I] 7 SCC 358, this Court stated:
H
    AMEER TRADING CORPN. LTD. v. SHAPOORJI DATA PROCESSING LTD. [SINHA. J.] 643

       "The legislation is primarily directed to the problems before the          A
       legislature based on information derived from past and present
       experience. It may also be designed by 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   B
       for and words chosen to communicate such indefinite referents 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 intention i.e. the true or legal meaning of an
       enactment is derived by considering the meaning of the words used          C
       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."

     In East India Hotels Ltd. v. Union ofIndia, [2001] l SCC 284 this Court
observed:                                                                         D
       "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."

      In Laxman Das (supra) the Rajasthan High Court held:
                                                                                  E
       "Therefore, in view of the above, the words "in every case", contained
       in R.4 of0.18 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              F
       discretion has been conferred upon the Court to accept the examination-
       in-chief in the form of affidavit as provided under 0.18, R. 4; or to
       record the substance thereof by the Court itself as provided under
       0.18, R.13. But in cases where orders would be appealable, the evidence
       is to be recorded strictly as provided tinder 0.18, R.5."
                                                                                  G
      On the other hand, in F.D.C. Ltd (supra) it has been held:

       "The harmonious reading of Rr. 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
                                                                                  H
    644                    SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A           evidence in the fonn 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.XVIll. In other words,
            mere production of the affidavit by the witness will empower the court
            to take such affidavit on record as fonning part of the evidence by
B           recording the memorandum in respect of production of such affidavit
            taking resort to R.13 of O.XVJII 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
c           O.XVIIJ. 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.

D       In other words, in the appealable cases though the examination-in-chief
  of a witness is pennissible to be produced in the fonn of affidavit, such
  affidavit cannot be ordered to form part of the evidence unless the deponent
  thereof enters the witness-box and confinns that the contents of the affidavit
  are as per his say and the affidavit is under his signature and this statement
E being made on oath to be recorded by following the procedure prescribed
  under R.5. Jn non-appealable cases, however, the affidavit in relation to
  examination-in-chief of a witness can be taken on record as fonning 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
F of R.5, where as in case of non-appealable cases the Court would be empowered
  to exercise its power under R.13"

          We agree with the view of the Bombay High Court.

          The matter may be considered from another angle. Presence of a party
G 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-examination him. The defendant would not be prejudiced
    in any manner whatsoever the examination-in-chief is taken on an affidavit
H
     AMEER TRADING CORPN. l TD. v. SHAPOORJIDATA PROCESSING l TD. [SINHA, J.] 645

and in the event, he desires to cross-examine the said witness he would be A
pennitted 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.

      Applying the aforementioned principles of interpretation of statute, we B
have no doubt in our mind that Order 18 Rules 4 and 5 are required to be
hannoniously 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.

      For the reasons aforementioned, there is no merit in this appeal, which
is dismissed accordingly. However, there shall be no order as to costs.

v.s.s.                                                      Appeals dismissed.