SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU versus UNION OF INDIA

Citation: [2005] SUPP. 1 S.C.R. 929 · Decided: 02-08-2005 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Case Partly allowed

Judgment (excerpt)

). 
SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU 
A 
v. 
UNION OF INDIA 
AUGUST 2, 2005 
[Y.K. SABHARWAL, D.M. DHARMADHIKARI AND 
TARUN CHATTERJEE, JJ.] 
Code of Civil Procedure, I 908: 
B 
Section 26(2) and Order 6 Rules I 5(4) and 17-Pleadings-Affidavit in C 
support of-Effect of-Held: Has the effect of fixing additional responsibility 
on the deponent as to the truth of the facts stated in the pleadings-However, 
such an affidavit would not be evidence for the purpose of the trial-Further, 
on amendment of the pleadings, a fresh affidavit shall have to be filed in 
consonance thereof 
Order 18 Rule 4(1) and proviso (as amended by Act 22 of 2002 w.ej 
1. 7.2002)-Examination-in-chief-To be on affidavit in every case-Validity 
of-Held: Requirement is valid-In the light of 0.18 R. 4(1) proviso, there is 
D 
no question of inadmissible documents being read into evidence-Further, in 
appropriate cases the trial Court can permit the examination-in-chief to be E 
recorded in open Court. 
Order 18 Rule 4(2) and proviso (as amended by Act 22 of 2002 w.ej 
1. 7.2002) and Order 26 Rule 4-A (as inserted by Act 46 of 1999 w.ej 
1. 7.2002)-Witnesses-Cross-examination or re-examination of-By the 
Commissioner-Additional burden on the litigant~Validity-Held: The power F 
is valid-However, in complex cases prayer for recording of evidence by the 
Commissioner may be declined by the Court-The fee payable to the 
Commissioner is likely to be less than the expenditure incurred towards 
attending Court on various dates and, thus, there would be no additional 
burden on the litigant. 
G 
Order 18 Rule 4 (as amended by Act 22 of 2002 w.e.f 1.7.2002)-
Recording of evidence-By Commissioner-Original documents-Safe custody 
of-Held: Duties of Commissioner laid down-Jn this regard, High Courts 
directed to frame necessary rules, regulations or issue practice directions. 
929 
II 
930 
SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R. 
A 
Order 18 .Rule 4(4)-Recording of evidence-By Commissioner-
Demeanour of witnesses-Benefit of watching of-Held: Although the Court 
is deprived of the benefit of watching the demeanour of the witnesses yet the 
Court would have the benefit of the Commissioner's observations in this 
regard-Hence, power of the Commissioner to record evidence valid 
B 
Order 18 Rule 4-Recording of evidence-By Commissioner-
Empanelling of advocates for-On the basis of tests in the subjects of CPC 
and Evidence Act-Validity-Held: It is a good practice-However, High 
Courts to examine this aspect and decide to adopt or not such a procedure. 
Order I 8 Rule 4-Recording of evidence-By Commissioner-Appelable 
C cases-Power to appoint Commissioner-Held: In view of the overriding effect 
of 0. 18 R. 19. fas inserted by Amendment Act 46 of 1999) the Court is 
empowered to appoint a Commissioner in appealable case as well. 
Order 18 Rule 4-Recording of evidence-By Commissioner-Hostile 
D witness-Power of Commissioner to declare-Heid: The discretion to declare 
a witness hostile has not been conferred on the Commissioner-Such a power 
can be exercised by the Commissioner after obtaining permission from the 
Court under S. 154 of the Evidence Act-Evidence Act, 1872, S. 154. 
Order 18 Rule 17-A-Deletion of-By Amendment Act 46of1999 w.ef 
E 1. 7.2002-Ejfect of-Production of evidence at a later stage-Held: Even 
before insertion of 0. 18 R. 17-A, the Court had inherent power under S. 151 
to permit parties to produce evidence not known to them earlier or which 
could not be produced in spite of due diligence-Therefore, deletion of 0. 18 
R. 17-A does not disentitle production of evidence at a later stage. 
F 
Order 8 Rule I and proviso--Written statement-Upper limit for filing 
of-Maximum period of 90 days-Extension of-Permissibility-Held: The 
provision is directory-Court is empowered to grant further time after expiry 
of 90 days in accordance with 0. 8 R. JO-However, such extension of time 
should be granted only in exceptionally hard cases and not in a routine 
G manner. 
Order 6 Rule 17 proviso--Amendment of pleadings-"At any stage"-
Power of Court-Curtailment of-Held: The provision to some extent curtails 
absolute discretion to allow amendment at any stage-if amendment is sought 
after commencement of trial it has to be shown that in spite of due diligence, 
H such amendment could not have been sought earlier-The object is to prevent 
.,,.:·--~ 
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 
931 
frivolous application which are filed to delay the

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