M/s City Alloys Private Limited vs M/s Hari Om & Co.

of Order XIX of the Code of Civil Procedure.

Now the plain reading of Rule 5 (ii) of Order XIX of Code of Civil Procedure makes it abundantly clear that the said Rule vests the power to the Commercial Court to inter alia return an affidavit of examination-in-chief as not constituting admissible evidence. As rightly submitted by the learned counsel for the petitioners Rule 6 (b) of Order XIX of Code of Civil Procedure provides that where the

Court is of the view that an affidavit is a mere reproduction of the pleadings, or contains the legal grounds of any party’s case, the Court may, by order, strike out the affidavit or such parts of the affidavit, as it deems fit and proper.

The undisputed fact remains that in paragraph nos. 2 to 14 of the affidavit filed in shape of examination-in-chief was a reproduction of the pleadings as contained in paragraph nos. 1 to 13 of the plaint but the impediment as is apparent from the impugned order of the learned Civil Judge (Senior Division)-I, Jamshedpur in exercising such power was that even the paragraph nos. 1 and 15 to 16 of the said affidavit filed in the shape of examination in chief were also not in compliance with Rule 6 (d) of Order XIX of Code of Civil Procedure as amended by the Schedule of the Commercial Courts Act, 2015 as it was not mentioned therein as to which of the statements in it are made from the deponent’s own knowledge and which are matters of information or belief.

Since, admittedly, the affidavit in shape of examination-in-chief was not in terms of the format and guidelines of Order XIX Rule 6 of Code of Civil Procedure as amended by the Schedule of the Commercial Courts Act, 2015 certainly, the same was not admissible in evidence. Under such facts of the case, the learned Civil Judge (Senior

Division)-I, Jamshedpur having returned the affidavit in examination-in-chief, this Court do not find any illegality in the said order.

It was strenuously argued by the learned counsel for the petitioners that striking out of the affidavit means that under no circumstances, any more pleading be allowed to have been filed but this Court is not in agreement with the learned counsel for the petitioners for the reasons that Rule 1 of Order XIX of Code of Civil Procedure which is still applicable to the proceeding of the Commercial Courts provides that any Court may at any time, for sufficient reasons, order that any particular fact or facts may be proved by affidavit, but the proviso of Rule 1 of the said Order vest the power with the Court that when it appears to the Court that either party bona fide desires production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such by affidavit. Further, Rule 4 of Order XIX of Code of Civil Procedure as amended by the Schedule of the Commercial Courts Act, 2015 also vest the Commercial Courts with the power of direction to regulate evidence as to issues on which it requires evidence.

The undisputed fact remains that Ajay Kumar whose examination-in-chief was filed in shape of affidavit is the

first witness and he is the sole proprietor of the plaintiff so obviously, his evidence is required as to the issues of involving the commercial disputes.

Under such circumstances, keeping in view the settled principle of law that procedure is a handmaid of justice and it cannot be allowed to be the master, which means that legal rules and steps are tools to help reach a fair result and courts use this idea to stop minor technical mistakes from ruining a person's true legal rights; in the considered opinion of this Court, no patent illegality has been committed by the learned Civil Judge (Senior Division)-I, Jamshedpur in returning the affidavit in shape of examination-in-chief and giving an opportunity to the plaintiff to file examination-in-chief in the format and guidelines as contained in Rule 6 of Order XIX of Code of Civil Procedure as amended by the Schedule of the Commercial Courts Act, 2015 more so, when the undisputed fact remains that cross-examination of the witness is yet to start; warranting interference of this Court in exercise of the power under Article 227 of the Constitution of India.

Accordingly, this civil miscellaneous petition being without any merit is dismissed.

In view of the dismissal of this civil miscellaneous petition, interlocutory applications, if any, is disposed of being infructuous. (Anil Kumar Choudhary, J.)