Swatanter Kumar, C.J.
Ex praecedentibus et consequentibus optima fit interpretatio The best interpretation is made from things preceding and following.
1. Historical background leading to enactment of a statute has been recognized in law as one of the relevant considerations while interpreting a statutory provision and even while examining the extent of its scope and application. Legislative intent and object and reasons of enactment are also accepted as legitimate tools of the law of interpretation. In Maxwell on The Interpretation of Statutes (Twelfth Edition by P. St. J. Langan) the observation of Sir George Jessel M.R. are noticed when he said, "the court, is not to be oblivious...of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law and legislation tells the Court, and prior judgments tell this present Court, what the object of the Legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended."
2. It is significant to note that the traditional English view earlier held that Legislative intent is not to be gathered from the Parliamentary history and felt that introduction of the measures in Parliament cannot be used as evidence for the purpose of showing the intention. The Law then gradually changed its course and it was held that the courts are entitled to consider such external or historical facts as may be necessary to understand the subject matter to which the statute relates. The House of Lords in BlackClawsan International Ltd. v. Papierwerke WaldhofAschaffenburg, A.G. (1975)1 All ER 810 (HL) Referred in Principles of Statutory Interpretation (11th Edition 2008) Justice G.P. Sing Wadhwa & Co. Nagpur. unanimously held that the report of a committee presented to Parliament preceding the legislation could be seen for finding out the then state of the law and the mischief required to be remedied. The earlier traditional view came to be criticized and the entire Law tilted more in favour of considering the surrounding circumstances and permitted use of such aid for better interpretation of the provisions. The school of thought that limited but open use should be made of Parliamentary history in construing statutes has been gaining ground as indicated in English Law Commission and Scottish Law Commission as contended in (1970) 33 Modern Law Review 197. Lord Browne Wilkinson said, "Reference to parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity. Even in such cases references in court to parliamentary material should only be permitted in given circumstances.
3. Under the American practice, the traditional English practice was relaxed much earlier and now, the law liberally permits reference to historical background. In India, the modern view prevalent in these two systems have been applied with greater freedom and free of restrictions. Right from the case of
For determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide a remedy for the then existing malady. In A. Thangal Kanju Musaliar v. M. Venkitachalam Potti, the Statement of Objects and Reasons was used for judging the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the Constitution. In that decision for determining the question, even affidavit on behalf of the State of "the circumstances which prevailed at the time when the law there under consideration had been passed and which necessitated the passing of that law" was relied on. It was reiterated in State of West Bengal v. Union of India that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, can be used for `the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation''. Similarly, in Pannalal Binjraj v. Union of India a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income Tax Act.
4. Reference to this background of principle of statutory interpretation was necessary keeping in view the scope of the reference that has been made to the Full Bench by the learned Single Judge. We may, thus, now refer to the limited facts necessary to be noticed leading to the present reference.
5. For the purposes of brevity, we would be referring only to the facts of Petition No. 610 of 1999 (Harish Vithal Kulkarni and another), though number of cases raising somewhat similar issues have been referred for opinion of the larger Bench. In that case, petition under the Testamentary and Intestate Jurisdiction of this Court had been instituted by Smt. Sudha M. Subnis being widow of the deceased. According to her, deceased had executed his last will and testament in 1991 in respect of his assets in credit. Her son viz. Pradeep M. Sabnis had filed Administrative Suit No. 3354 of 1993 against his mother demanding 50% share in the property. While relying the said will, she had prayed that the executors Harish Vithal Kulkarni and Shivanand Vishwanath Worty be issued probate in respect of that will. In all the cases referred to this Bench are of similar nature where probate petitions or some similar proceedings have been taken out on the basis of the will or otherwise which are being contested by the respondents in the petition and who had even challenged the legality, correctness and execution of the wills.
6. During the pendency of this petition, Court Commissioner had been appointed for recording evidence of the petitioner which order was subsequently changed and even for some time, the proceedings were taken before the court. However, it was contended before the court that crossexamination of these witnesses should be taken before the court as they have a right to examine and crossexamine the witnesses in open court and it was not required to refer the matter to the Commissioner for recording of the evidence in view of the amended provisions of Order 18 Rule 4(2) of Civil Procedure Code. (hereinafter referred to as `Code'')
7. The learned Judge dealing with the matter vide order dated 6th October, 2009 passed the following order of reference which reads as under:
1. There are various types of orders on the record of various suits; first, the Hon''ble Court appointed/directed the Commissioner to record crossexamination or re-cross examination; second the Hon''ble court by revoking even the order of appointment of the Commissioner directed the parties to lead the evidence in the Court. I am of the view that the evidence under Order 18 Rule 4(2) of the CPC (for short, CPC) be recorded through the Commissioner, unless for reason recorded and/or in exceptional case, in the Court.
2. The Plaintiff is opposing to record the evidence through the Commissioner. I am of the view that recording of evidence, after the amendment to Order 18 Rule 4, read with Order 13 Rule 3, 4 and 6 of CPC be by the Commissioner and not by the Court, unless ordered otherwise.
3. Prior to this amendment, subject to Order 26 of CPC, unless case made out, the Court used to reject the order of appointment of commissioner. Now, after this amendment of 2002, as the legislature has rightly by amendment, expressed to get the evidence recorded through an affidavit especially examination in chief. The legislature has permitted to delegate this important power to record the evidence also through the Commissioner.
4. In
This amendment was not brought into force and, subsequently, the CPC (Amendment) Act, 2002 was passed whereby by Section 12(b), Order 18, Rule 4 was amended in the following manner.
12. In the First Schedule, in Order 18
(a) ...
(b) for Rule 4 (as substituted by Clause (ii) of Section 27 of the CPC (Amendment) Act, 1999), the following rule shall be substituted, namely:
4.(1) In every case , the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filled and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.
(2) The evidence (crossexamination and reexamination) 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 subrule, 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.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order 26, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.
32. From the perusal of the amendment which was sought to be introduced in 1999 and the actual amendment which was brought into force in 2002, it can be noticed that several changes were made in the amendment which was proposed in 1999. Firstly, it can be seen that after Order 18, Rule 4(1), a proviso has been incorporated which was not there in the earlier amendment and the proviso also has been added to Order 18, Rule 4 subclause (4). The aforesaid first proviso to Rule 4(1) and the second proviso to Rule 4(4) clearly reveals the intention of the Legislature. Whereas, in the earlier amendment of 1999, the intention of the Legislature was to delegate the work of recording of evidence entirely to the Commissioner who would be appointed for the purpose of recording of evidence. The CPC (Amendment) Act, 2002 makes a departure and gives discretion to the Court to either record the crossexamination itself or depute that work to the Court Commissioner. At the same time, proviso to subrule (1) of Rule 4 clearly indicates that the Court alone is empowered to decide the question of proof and admissibility of documents. Whereas, so far as objection raised during recording of evidence before the Commissioner is concerned, proviso to subrule (4) of Rule 4 clearly stipulates that the said objection could be determined by the Court at the time of final hearing of the case. The present amendment brought about by the CPC (Amendment) Act, 2002, therefore clearly tries to reconcile the earlier position and vests a discretion in the Court of deciding the question of admissibility of documents before the case is sent to the Commissioner for recording the crossexamination. The purpose and intention of the Legislature, therefore, is very clear. It is apparent that after having noticed that large time of the Court is taken in recording oral evidence of the witnesses, it was thought fit to delegate this work to the Commissioner by expanding the powers of the Commissioner which are given under Order 26 and further amendment to Order 19, Rules 1 and 2 gives ample power to the Commissioner to record the evidence. At the same time, since the Commissioner is not competent to decide the question of proof and admissibility of documents and evidence, discretion is given to the Court, either to decide this issue before sending the matter to the Commissioner for recording of crossexamination or decide this issue after the report is submitted by the Commissioner. It will have to be noted here that if the objects and reasons of the CPC (Amendment) Act are noticed, it can be seen that the entire procedure prescribed for hearing and disposal of the suits has been overhauled and, therefore, the Commissioner is supposed to give a report within a period of sixty days and the period for extension of time which is to be given to the Commissioner has to be by recording reasons by the Court.
5 The full Bench has concluded as under:
Conclusions:
92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:
Answer to Question A:
As already noticed, (i) objection to the document sought to be produced sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;
(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.
The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word of caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.
Answer to Question - B:
The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order 18, Rule 4 of C.P.C. Can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. 2004 (5) All MR (S.C.) 425 (supra).
6. I am not expressing anything, so far as the above aspects of recording evidence or trial are concerned. I am of the view that, it is desirable now to record the evidence through the Commissioner unless the Court order otherwise. This is for the following reasons.
a) To save the public time and energy, as once the recording of evidence commenced the rest of the daily board get disturbed and remaining cases need to be adjourned.
b) The legislature has provided and delegated the power to record the evidence through the Commissioner, in my view it should be utilized to the maximum extent, so that the Court can proceed with the other basic aspects of the trial.
c) This will provide one more forum/alternative forum only to record the evidence.
d) This will share the courts burden. This will help to get early disposal of the matters, so that the Court can after receipt of the commissioner''s report and after deciding the issue with regard to the documents can straight way hear the matter finally.
e) This is also support and ensure the existing demand of early disposal of the suits from all sorts, including the matters under Negotiable Instruments Act & or such other Act.
f) The recording of evidence under Order 18 Rule 4(3) can also be with the help of electronic media, audio or audiovisual mechanism/mode. (
7. Therefore, as this is an important issue having far reaching ramifications, which in my view need to be decided as early is possible finally. Therefore, I am submitting to consider to refer this issue to a larger bench.
1. Whether the evidence, as referred in Order 18 Rule (2) of the CPC, crossexamination and re-cross examination; in the Civil Matters and/or such other matters, be recorded only through the commissioner appointed by the Court and only in exceptional case and/or when Court thinks fit, in the Court?
2. Or any other such connected issues.
8. In view of above, the Registry to place the matter before the Hon''ble the Chief Justice for appropriate order/direction.
8. It is in view of the above order of reference that the matter came to be placed before the Full Bench. We are not proposing to deal with the aspects which have been urged before us that in the light of the Full Bench judgment in the case of Hemendra Rasiklal Ghia v. Subodh Mody 2008(6) Mh.L.J. (supra) and the judgment of the Supreme Court in
9. In the light of the principles we have discussed above and to appropriately provide an answer to the framed question of law, it would be necessary for us to examine the legislative history of the provisions of Order 18 Rule 4 of the Code. The first CPC was Act 8 of 1859. Prior to this Act, the procedure of Mofussile Courts was regulated by special Acts and Regulations repealed by Act 10 of 1861. The Code of 1859 applied to the Mofussile Courts. The next Code was Act 10 of 1877, which repealed that of 1859. This was amended by Acts 18 of 1878 and 12 of 1879; then superseded by the Code of 1882 (Act 14 of 1882). This was amended by Acts 15 of 1882; 14 of 1885; 4 of 1886; 10 of 1886; 7 of 1887; 8 of 1887; 6 of 1888; 10 of 1888; 13 of 1889; 8 of 1890; 6 of 1892; 5 of 1894; 7 of 1895 and 13 of 1895, and then superseded by the present Code of 1908, in which major amendments were carried out by the Legislature by the Amending Act of 1976, 1999 and lastly 2002. Order 18 of Rule 4 of 1908 Code as it originally stood reads as under:
R.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.
10. As is apparent from the bare reading of the said provision, it provides right to parties to examine the witness orally in open court in the presence and under the superintendence of the Judge concerned. The expression, "open court" clarifies that the witness could be examined publically. Keeping in view the said provision the Courts had taken the view that the witness should be examined in court as the court could also notice the demeanour of the witness during the course of the trial. Thus, this provision mainly regulated the right to produce witnesses and examine them in open court under the supervision of the court.
11. By the Amending Act 46 of 1999 of the Code in terms of Section 27, the provisions of Order 18 subrule 4(2) were directed to be omitted and substituted as following:
4. Recording of evidence by Commissioner.(1)...
(2) The evidence (crossexamination and reexamination) of the witness in attendance, whose evidence (examination in chief) by affidavit has been furnished to the Court shall be taken orally by a Commissioner to be appointed by the Court from amongst the panel of Commissioners prepared for this purpose on the same day:
Provided that, in the interest of justice and for reasons to be recorded in writing, the Court may direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the judge.
12. This amending provision was again subjected to further amendment and substitution by Amending Act 22 of 2002 where Section 12(b) substituted this provision as follows:
12. Amendment of Order XVIII.
(b) for Rule 4 [as substituted by Clause (ii) of Section 27 of the CPC (Amendment) Act, 1999], the following rule shall be substituted, namely:19
4. Recording of evidence.(1) In every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.
(2) The evidence (crossexamination and reexamination) 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 subrule, consider taking into account such relevant factors as it thinks fit.
13. The amended provisions of 2002 Code came into force with effect from 1st July, 2002. Main distinction between the provision of 1999 and 2002 Amendment Act was that under the provisions of 18(4)(2) of the 1999 Code, the evidence was to be led by examination in chief by filing affidavits and the witness filing the affidavit was to be cross examined orally by the Commissioner appointed by the court unless the court for reasons to be recorded passed an order under the proviso of the said rule directing evidence to be recorded before the court. While the Amendment Act, 2002, provided that even documents could be annexed to the affidavit, the admissibility and objection to which would be determined at the subsequent stage and that the crossexamination of the witness filing the affidavit could be conducted either in the court or before the Commissioner appointed by the Court. In other words, distinction between these two provisions indicates the extent of discretion that has been given to the Court to decide whether cross examination of a witness whose affidavit has been taken on record, should be conducted in Court or before the commissioner.
14. Under the 1999 Amendment Act, examination in chief had to be furnished before the Court by way of affidavit while cross examination was required to be taken orally by a Commissioner to be appointed by the Court. Proviso to Order 18 Rule 4, Subrule (2) laid down two conditions; (i) in the interest of justice and (ii) for reasons to be recorded in writing discretion was given to the Court to direct that the evidence of the witnesses may be recorded in the presence of the Court and under its personal directions and superintendence. The proviso thus was an exception to the rule contained in Subrule (2). It was expected that the Court would exercise discretion only when both the conditions were cumulatively satisfied. The expression "interest of justice" of course had to be given a wider connotation. In contra distinction to this, under the amended provisions of 2002 Act, this power of judicial discretion has been vested in the Court under the rule itself. The situation seems to be somewhat converse inasmuch as under Subrule (2) now the Court has to exercise its judicial discretion that cross examination of the witness whose affidavit has been filed shall be taken before the Court or by the Commissioner appointed by it and proviso to the rule indicates and places an obligation upon the Court that the Court appointing a Commissioner before whom such cross examination takes place, it shall take into account such relevant factors as it thinks fit. In other words, now the Court has to apply its mind as to when and who should be appointed a Commissioner keeping in view the facts and circumstances of the case and what specific directions are to be issued for cross examination to be conducted before the Commissioner. As it would appear that under both the provisions discretion has been vested in the Court. The Court obviously has to exercise such discretion in accordance with the settled principles of law.
15. The expression "or" appearing in the amended rules would obviously mean "either". The Supreme Court in the case of
9. It was submitted by the learned Counsel that Section 3 empowers the Government to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases, as may be specified in the notification. He emphasized the use of the word "or" after such area or areas and before such case or group of cases and further submitted that the power conferred upon the Government is in the alternative, that is t say, that the State Government may appoint a Special Judge either for an area or areas or for a case or group of cases. But it cannot appoint a Special Judge for an area or areas and also appoint additionally a Special Judge for a case or group of cases within that area. The learned Counsel first drew our attention to the meaning of the word "or" contained in New Webster''s Dictionary of the English language and the decision of the Allahabad High Court in
16. The expression "shall" used in Order 18 Rule 4(2) has to be construed as "may". It will hardly be permissible to read the word "shall" in relation to examination before a Court as it is bound to cause absurd results. If the expression "shall" is construed strictly and only with regard to the Court as argued before us, then the very discretion given to the Court in this rule would stand frustrated. The legislative intent in providing for exercise of discretion by giving option to the Court to permit the cross examination of the witnesses before itself or before the Commissioner appointed by it shall be rendered otiose in effect thus defeating the very object of the legislative amendments. It is a settled rule that the Court''s jurisdiction to interpret a statute can be invoked when a provision is ambiguous. Interpretare et concordare leges legibus est optimus interpretandi modus - To interpret and harmonize laws is the best method of interpretation. The Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope or intention of a legislation when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It is also equally true that use of expression "shall or "may" is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. (Ref :
17. In the case of
31. The word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the statute in question.
18. The use of the word "shall" appearing in Subrule (2) is mandatory only to the extent that the cross examination of a witness whose affidavit has been taken on record in lieu of the examination in chief has to be taken; but whether it would be taken before the Court or before the Commissioner appointed by it is a matter of discretion of the Court. There is no occasion for the Court to construe the word "shall" as mandatory and limited to the extent that cross examination shall only be conducted before the Court. If that interpretation was to be accepted, it would completely frustrate the very object of the amendment and would bring it at parity with Order 18 Rule 4 of the unamended Code of Civil Procedure, 1908. Such an interpretation thus cannot be accepted. The use of the word "shall" is neither a decisive factor nor capable of such a strict construction as this interpretation does not fit in the scheme of the Code.
19. Discretion is power of the Court or Arbitrators to decide as they may think fit. In the Second Edition of The Supreme Court on Words and Phrases [(19502008) edited by Justice R.P. Singh, Ashoka Law House, New Delhi (India)], the word "discretion" is explained as follows:
"Discretion" - Power of the court or arbitrators to decide as they think fit.
The word ''discretion'' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hardandfast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [ Corpus Juris Secundum, Vol. 27, p. 289 as referred in
''A discretion'', said Lord Wrenbury, ''does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion do not what in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates.'' [Roberts v. Hopwood 1925 AC 578 : 1925 All ER Rep 24 [HL].] This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably. [Maxwell]
''Discretion'', said Lord Mansfield in R. v. Wilkes [1970] 4 Burr 2527 : [15581774] All ER Rep 570 : 98 ER 327 [HL], ''when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague, and fanciful, but legal and regular.'' [ See Craies on Statute Law, 6th Edn., p. 273.]
Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion : Rooe''s case [1598] 5 Co Rep 99b, 100a : 77 ER 209 according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. Lord Hulsbury, L.C. in Susannah Sharpe v. Wakefield 1891 AC 173 : [188690] All ER Rep 651 [HL], at p. 179 referred to in
When anything is left to any person, Judge or Magistrate to be done according to his discretion, the law intends that it must be done with sound discretion, and according to law [Tomlin]. In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to one''s own judgment; unrestrained exercise of will; the liberty of power of acting without other control than one''s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. 2 Inst. 56, 298; Tomlin.
Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth between wrong and right, between shadow and substance, between equity and colourable glosses and pretenses, and not to do according to the will and private affections of persons.
The very word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. Lalbhai Tricamlal v. Municipal ComMr., Bombay ILR [1909] Bom 334 : 10 Bom LR 821. The word ''discretion'' in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it also imposes a heavy responsibility. Ibrahim v. Emperor AIR 1933 Sind 49 : 34 Cr LJ 591.
20. The discretion of a Court is called judicial discretion and is regulated by well settled principles of law. The court has to examine the facts and circumstances of the case and keeping in view the provisions of Order 18 Rule 4 as a whole has to pass an appropriate order and direction whether cross examination of a witness is to be conducted before the Court or Commissioner appointed by it. Discretion of the Court cannot be taken away by any interpretative process particularly when it is unambiguously provided for by the legislature itself. There is inbuilt element of judicial discretion and deprivement of such a power is impermissible in light of the scheme of the CPC and settled canons of law. In terms of Section 151 of the Code of Civil Procedure, 1908, inherent powers are vested in Court by the legislature which necessarily imply exercise of judicial discretion appropriately and inconsonance with the settled precepts.
21. The learned Single Judge in the Order of Reference has observed that "I am of the view that, it is desirable now to record the evidence through the Commissioner unless the Court order otherwise. This is for the following reasons:
a) To save the public time and energy, as once the recording of evidence commenced the rest of the daily board get disturbed and remaining cases need to be adjourned.
b) The legislature has provided and delegated the power to record the evidence through the Commissioner, in my view it should be utilized to the maximum extent, so that the Court can proceed with the other basic aspects of the trial.
c) This will provide one more forum/alternative forum only to record the evidence.
d) This will share the courts burden. This will help to get early disposal of the matters, so that the Court can after receipt of the commissioner''s report and after deciding the issue with regard to the documents can straight way hear the matter finally.
e) This is also support and ensure the existing demand of early disposal of the suits from all sorts, including the matters under Negotiable Instruments Act & or such other Act.
f) The recording of evidence under Order 18 Rule 4(3) can also be with the help of electronic media, audio or audiovisual mechanism/mode. (
22. The legislature has provided that the evidence may be recorded by the Commissioner which results in providing alternative forum for recording of evidence and thus sharing the burden of the Court. Evidence can also be recorded by electronic media which may result in expeditious disposal. With respect, we are unable to find any of these reasons to support the view expressed by the learned Single Judge. Once the legislature has given discretion to the Court to direct recording of cross examination by the Court itself or before a Commissioner appointed by it, it will not be permissible to lay down any straitjacket formula directing that the cross examination should not be before the Court but it should only be before the Commissioner appointed by it. If this view is accepted then not only will it result in divesting the Court of the judicial discretion vested in it by the Legislature but would also frustrate the very object of the provisions under interpretation. In fact, in our view, the Full Bench of this Court in the case of
32. From the perusal of the amendment which was sought to be introduced in 1999 and the actual amendment which was brought into force in 2002, it can be noticed that several changes were made in the amendment which was proposed in 1999. Firstly, it can be seen that after Order XVIII, Rule 4(1), a proviso has been incorporated which was not there in the earlier amendment and the proviso also has been added to Order XVIII, Rule 4 subclause (4). The aforesaid first proviso to Rule 4(1) and the second proviso to Rule 4(4) clearly reveals the intention of the Legislature. Whereas, in the earlier amendment of 1999, the intention of the Legislature was to delegate the work of recording of evidence entirely to the Commissioner who would be appointed for the purpose of recording of evidence. The CPC (Amendment) Act, 2002 makes a departure and gives discretion to the Court to either record the cross examination itself or depute that work to the Court Commissioner. At the same time, proviso to subrule (1) of Rule 4 clearly indicates that the Court alone is empowered to decide the question of proof and admissibility of documents. Whereas, so far as objection raised during recording of evidence before the Commissioner is concerned, proviso to subrule (4) of Rule 4 clearly stipulates that the said objection could be determined by the Court at the time of final hearing of the case. The present amendment brought about by the CPC (Amendment) Act, 2002, therefore clearly tries to reconcile the earlier position and vests a discretion in the Court of deciding the question of admissibility of documents before the case is sent to the Commissioner for recording the crossexamination. The purpose and intent of the Legislature, therefore, is very clear. It is apparent that after having noticed that large time of the Court is taken in recording oral evidence of the witnesses, it was though fit to delegate this work to the Commissioner by expanding the powers of the Commissioner which are given under Order XXVI and further amendment to Order XIX, Rules 1 and 2 gives ample power to the Commissioner to record the evidence. At the same time, since the Commissioner is not competent to decide the question of proof and admissibility of documents and evidence, discretion is given to the Court, either to decide this issue before sending the matter to the Commissioner for recording of crossexamination or decide this issue after the report is submitted by the Commissioner. It will have to be noted here that if the objects and reasons of the CPC (Amendment) Act are noticed, it can be seen that the entire procedure prescribed for hearing and disposal of the suits has been overhauled and, therefore, the Commissioner is supposed to give a report within a period of sixty days and the period for extension of time which is to be given to the Commissioner has to be by recording reasons by the Court.
23. The judgment of the Supreme Court in the case of Salem Advocate Bar Association (supra) in paragraph 19 described the scope of powers of the Court in terms of Order 18 Rule 4(2) of the Code and held that there was clear power vested in Court to direct evidence to be recorded in Court or before the Commissioner, the Court held as under:
19. Order 18 Rule 4(2) gives the court the power to decide as to whether evidence of a witness shall be taken either by the court or by the commissioner. An apprehension was raised to the effect that the court has no discretion and once it decides that the evidence will be recorded by the Commissioner then evidence of other witnesses cannot be recorded in court. We do not think that this is the correct interpretation of subrule (2) of Rule 4. Under the said subrule, the court has the power to direct either all the evidence being recorded in court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the commissioner and partly by the court. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of the other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word "mechanically" indicates that the evidence can be recorded even with the help of the electronic media, audio or audiovisual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.
24. Still in the second case of
5. ...The scope of Order 18 Rule 4 has been examined and its validity upheld in Salem Advocate Bar Assn. case, (2003)1 SCC 49. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of the examination in chief. Further, in
25. Thus, it is clear from the above stated principles that the discretion is vested in Court to direct cross examination of a witness whose affidavit in examination in chief has been filed to be cross examined either before the Court or before the Commissioner appointed by it. Proviso to Order 18 Rule 4(2) expects the Court to take some care while directing the evidence by way of crossexamination to be recorded before the Commissioner as it has to pass certain directions keeping in view the facts and circumstances of a given case. In either of the cases, the Court has to apply its mind and come to a conclusion whether in the facts and circumstances of a given case, it will be in the interest of justice and for expeditious disposal of the suit that evidence should be recorded before the Court or before a Commissioner appointed by it. The legislative intent behind introducing all these amendments, whether of 1999 or 2002, was to ensure expeditious disposal of the cases. Thus, one of the main considerations which has to weigh with the Court while dealing with such matters is the expeditious disposal of the cases and that interest of justice is not defeated.
26. The Amending Act of 2002 has specifically reversed the situation existed under 1999 Act, and therefore, it would be impermissible to adopt the same approach by process of judicial interpretation. It may be appropriate to refer to the statement of object of the Amendment Act of 2002.
Statement of Objects and Reasons The Code of the Civil Procedure, 1908 ( hereinafter referred to as the Code contains the law relating to the procedure in suits and civil proceedings. The Code has been amended from time to time by various Acts of Central and State Legislatures. Recently, the CPC (Amendment) Act, 1999 was enacted by Parliament with a view to cutting short the delays at various levels. After its enactment a large number of representations were received both for and against its enforcement. The Law Commission of India in its 163rd Report also dealt with the CPC (Amendment) Bill, 1997 which was enacted later on as the CPC (Amendment) Act, 1999.
2. Before action could be initiated for enforcement of the said Act, the Bar Council of India and certain local Bar Associations asked the Government to relook into certain provisions which could cause hardship to the litigants. Accordingly, the provisions of the CPC (Amendment) Act, 1999 and other proposals to reduce delay in the disposal of civil cases were discussed with legal luminaries. The Government has further considered the matter in all its aspects after consulting the Bar Council of India and others concerned and based on the outcome of the deliberations, it is now proposed to further amend the Code of Civil Procedure, 1908, consistent with the demands of fair play and justice.
27. There are other provisions which further indicate that wherever Commissioner is appointed, he is expected to complete the procedure and submit report within 60 days from the date of commission. This also indicates that the intent and purpose behind this amended provision is to complete the proceedings at the earliest and keep the matter well within the superintendence and control of the Court.
28. The Supreme Court has already clarified that the expression "in every case" appearing in Order 18 Rule 4(1) are of some significance and examination in chief of a witness has to be tendered in evidence by way of affidavit and the procedure prescribed therein has to be followed. It would hardly make a difference whether the case in hand is appealable or non appealable as contemplated under the provisions of Order 18 Rule 5 of the Code. Reference can be made to following observations made by the Supreme Court in the case of Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2004) All MR (S.C.) 425 reads as under:
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., crossexamination or reexamination in the appealable cases will have to be considered in the manner laid down in the Rules, subject to the other subrules 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 their 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 consciously and, thus, full effect thereto must be given.
22. In Halsbury''s Laws of England, Volume 44(1), fourth reissue, para 1474, PP 906907, 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 corre3sponds 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 Haydon''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:
(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 common law; and
(4) the true reason of the remedy,
and then the office of all the judges is always to make such construction as shalol:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro private 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 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,
29. In the present case, we are not concerned with the application of Order 18 Rule 5 of the Code, as the question framed or referred by the learned Single Judge is not relatable to Rule 5.
30. In light of the above discussion, we answer the question framed by the learned Single Judge as follows:
(i) The evidence as referred in Order 18 Rule 4(2) of the Code of Civil Procedure, 1908, cross examination and reexamination in civil matters and/or such other matters can be recorded in the discretion of the Court by the Court itself or before a Commissioner appointed by it. The question will have to be decided in the judicial discretion of the Court with reference to the facts and circumstances of a given case and it is neither permissible nor possible to provide any straitjacket formula in this regard.
