1. Petitioner Ethiraj was the defendant in ejectment suit No. 306 of 1961 on the file of the court of Small Causes, Madras. He filed an application under S. 9 of the Madras City Tenants Protection Act for directing the respondent (Plaintiff) to sell the suit site to him for a price to be fixed by the court. the learned Judge of the Small Cause Court, who heard the case, decided it in his favour. But on appeal the Chief Judge of the Court of Small Causes, Madras, held that the petitioner had not proved that he had become a tenant before the amendment of the Act and that he was, therefore, not entitled to the benefit of the Act. The petitioner filed C.R.P. No. 2069 of 1963 in this court, and Alagiriswami J. allowed the civil revision petition and remanded the case to the trial court solely on the ground that, as an appeal lay against the order passed under Section 9 of the Madras City Tenants protection, Act, the provisions of Order XVIII, Rule 5, C.P. Code should be complied with and that evidence should have been recorded completely, instead of taking merely a memo of evidence. When the matter went back before the Fourth Judge of the Court of Small Causes, Madras, he took evidence and again negatived the claim of the petitioner, and this order was confirmed by the Chief Judge, Court of small Causes.
2. The petitioner has taken several grounds in this civil revision petition, but I find that the Fourth Judge of the Court of Small Causes has again failed to comply with Order XVIII, Rule 5, C.P. Code. Though a specific ground has not been taken about non-compliance with the provisions contained in Order XVIII, Rule 5, C.P. Code, I can take notice of it, and, in the circumstances of the case. I am constrained once again to remand for over a decade.
3. It is true, the evidence now recorded by the Fourth Judge of the Court of Small Causes, gives the names and other details usually found in depositions recorded in a regular manner, but in other respects, it does not in any way differ from the memo of evidence recorded prior to the remand. The signatures of the witnesses have been taken, but there is nothing in the depositions to show that the evidence was read over to the witnesses in the presence of the Judge, and, in fact, the depositions have not been signed by the Judge. Order XVIII, Rule 5, C. P. C. reads as follows:
'In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence of and under the personal direction and superintendence of the Judge not ordinarily in the form of question and answer, but in that of a narrative, and when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same and shall sign it.'
At page 903 of Mullah's Civil Procedure Code, 13th Edn., Volume I, it is stated that there is difference of opinion whether if the deposition is not read over to the witness as required by Rule 5 or interpreted to him as required by Rule 6 of Order XVIII, it is admissible in evidence in trials for perjury and forgery, it being held in some cases that the deposition is not admissible in evidence, which in others that it is.
4. It is necessary to refer to some decisions to determine the scope of Order XVIII, Rule 5, C.P.C. In Kamatchinatha Chetti v. Emperor, ILR (1905) Mad 308 it was held that a person could not be convicted for perjury when the deposition on which the charge was based had not been read over to him in the presence of the Judge.
Bogra v. Emperor, ILR (1911) Mad 141, referred to in Mullah as supporting the contrary view, is really distinguishable. It was held in that case that, where a deposition had been read over to a witness in court and had been admitted by him to be correct in the presence of the Judge, the fact that another witness was being examined at the time was not defence to a prosecution of the deponent for giving false evidence in the deposition so read over. It was, however, pointed out in that decision that such an irregularity might invalidate the conviction of the accused in the case in which the deposition was so recorded. In fact the above decision has been distinguished in Nalluri Chenchiah v. King Emperor, ILR 42 Mad 561 : AIR 1919 Mad 45), as seen from the following passage;
'Where a deposition, after it has been completed, has been interpreted and read over to a witness and acknowledged by him to be correct, any irregularity due to the omission of the observance of further formalities, such as the presence of the Judge and his listening to the reading during the time when the deposition is interpreted and read over to the witness may not affect the admissibility of the record as evidence of the witness's statement (see Bogra v. Emperor, ILR (1911) Mad 141); but the omission to interpret and read over the deposition to the witness after the deposition is completed cannot in my opinion be put on the same footing, because the guarantee provided by the law for the accuracy of the deposition has been substantially ignored, and it is dangerous and against public policy to make a witness liable on such a wholly unsafe record.'
It was held in that case that the omission to interpret and read over the deposition was not a mere irregularity, but rendered the record inadmissible in proof of the deposition under Section 91 of the Evidence Act, as the guarantee provided by the law for its accuracy had been substantially ignored and it was dangerous and against public policy to make a witness liable on such a wholly unsafe record.
5. In Emperor v. Nabab Ali Sarkar : AIR1924Cal705 ,it was held that the omission to read over his deposition to a witness, in accordance with Order XVIII, Rule 5, C.P. Code rendered the same inadmissible in evidence against him on his subsequent trial for forgery, and that oral evidence of its contents was excluded by Section 91 of the Evidence Act.
6. In the present case there is not even the usual certificate, 'Rule over to the witness and admitted by him to be correct.' Thus it is unfortunate that, in spite of this court remanding the matter to the trail court with a direction to comply with the provisions of Order XVIII, Rule 5, C.P. Code in the matter of recording evidence, it has not been complied with and what one finds is merely something in the nature of a memo of evidence.
7. The decrees and judgments of the courts below are, therefore, set aside solely on this ground and the matter is remanded to the trial court for recording evidence properly as required by Order XVIII, Rule 5, C.P. Code and deciding the case according to law. There will be no order as to costs.