M.Y.EQBAL, ACTING C.J. - (1.) THIS application is directed against the order dated 10.3.2008 passed by the Munsif, Chaibasa in Title Suit No. 5/05 whereby he has rejected the prayer made by the plaintiff -petitioner for examination of the plaintiff on commission on the ground that the witness is 70 years old and is unable to come to Chaibasa from Kolkata.
(2.) THE court below rejected the application holding that relevant papers have not been filed showing prima facie that the witness is unable to attend the court for his examination. There is train route from Kolkata to Chaibasa and therefore, the court below held that there is no reason as to why the aforesaid witness should not be examined before the court. Perhaps the court below has not appreciated the provision of Order XVIII Rule IV of the Code of Civil Procedure which reads as follows: 4. Recording of evidence (i) 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 adminissibility 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 his 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 demenour 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 XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule. From perusal of the aforesaid provision it is manifestly clear that examination -in -chief of a witness, or of a party, shall be on affidavit and the cross -examination shall be either by the court or through commission. In the instant case the application of the petitioner was misconceived in as much as there is no question of recording examination -in -chief on commission. The examination -in -chief therefore have to be filed in affidavit and thereafter prayer be made for cross -examination of the witness on commission.
(3.) MR . Dey, learned Counsel appearing for the respondents submitted that the petitioner has not complied with the requirements of law as contemplated under Order 18 Rule 3A C.P.C. Although the petitioner has not complied with the provisions inasmuch as some witnesses have been examined but on that ground the plaintiff cannot be debarred from examining himself as a witness.;