(..14..)

TRIAL[1]

Table of Contents

QUESTION BANK

Q.1. State the procedure for ‘trial’ under the Civil Procedure Code.

Q.2. Explain rules relating to summoning and attendance of witnesses.

Q.3. State hearing of the suit and examination of witnesses.

SHORT NOTES

Adjournments.
Summoning and attendance of witnesses.
Hearing of the suit.
Examination of witnesses.

SYNOPSIS

SUMMONING AND ATTENDANCE OF WITNESSES (O. XVI)-

1) List of witnesses and summons to witnesses (R. 1)

2) Expenses of appearance of witness (R. 2)-

3) Service of summons (R. 8)-

4) Time for service of summons (R. 9)-

5) Penalty for default (R. 10)-

6) Attendance of witnesses who are in prison (O. XVI-A)-

ADJOURNMENTS (O. XVII)-

1) Adjournment at the request of the part to the suit (R. 1(1))-

2) Costs of adjournment (R. 1(2)-

3) Reasons for granting adjournment-

4) When adjournment may be refused-

5) If parties fail to appear on the day fixed (R. 2)-

III. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES (O. 18).

1) Right to begin (R. 1)-

2) Production of evidence (R. 2 and 3)-

3) Recording of evidence (R. 4)-

4) Recording of evidence in appealable cases- I

5) Recording of evidence in non-appealable cases (R. 13)-

6) Evidence recorded by another judge (R. 15)-

7) Power to examine witness immediately (R. 16)-

8) Arguments (R. 2 (3A to 3D)-

After framing the issues, the next stage starts, which is the production of evidence by the parties. It is also called ‘the trial’. Plaintiff has to bring evidence in support of his statement in the plaint and according to the issues framed by the Court. After the completion of the plaintiff’s evidence, the defendant brings his evidence.

SUMMONING AND ATTENDANCE OF WITNESSES[2] (O. XVI)-

1) List of witnesses and summons to witnesses (R. 1)

1 states that the parties to the suit shall present in the Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons for their attendance in the Court. Such a list shall be filed on or before the date fixed by the Court but not later than fifteen days after the issues are framed.

The rule requires the party desirous of obtaining summons to file an application stating therein necessary details as to the witness, purpose for calling him, name, occupation, address of witnesses etc. On an application of the party, the Court will issue a necessary summons to call the person to give evidence in Court.

The summons may be issued for two purposes: (i) either to produce a document or (ii) to give evidence.

It further provides that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through the Court or otherwise, any witness whose name has not been mentioned in the list of witnesses if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

Generally, the party requiring a witness has to approach the Court to get a summons issued. However, R. 1-A empowers any party, even without applying for a summons to bring any witness to give evidence or to produce documents. The object behind this provision is that if a party wants to produce his witness without the assistance of the Court, he can do so, and the Court cannot prevent him. However, if he wants the assistance of the Court to bring witnesses before the Court, he shall apply for a summons.

The Court can also call any witness as a Court witness if it thinks fit to meet the ends of justice (R. 14). The provisions relating to the issue of summons to give evidence will apply to a summons to produce documents or other material objections (S. 30).

2) Expenses of appearance of witness (R. 2)-

2 provides that the party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into the Court such sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend.

3) Service of summons[3] (R. 8)-

Every summons to the witness is to be served as nearly as may be in the same manner as a summons to a defendant. The rules under O. V. as to service of summons shall apply to the service of summons to witnesses. Even the plaintiff can personally serve a summons on the defendant (R. 7-A).

4) Time for service of summons (R. 9)-

Service of a summons in all cases is to be made within sufficient time before the date fixed for the hearing. It is to allow the witness a reasonable time for preparation and for travelling to the place at which his attendance is required.

5) Penalty for default (R. 10)-

If a person fails to appear on the date of summons of the Court, the Court may issue a proclamation or warrant and order of attachment of his property.

6) Attendance of witnesses who are in prison (O. XVI-A)-

Where the Court wants to examine the person detained in jail, it may order the officer in charge of the prison to produce that person before the Court to give evidence. However, suppose the distance between the prison and the Court is more than twenty-five kilometres. In that case, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate.

ADJOURNMENTS[4] (O. XVII)-

It is the general rule that once the hearing of the suit has commenced, it shall be continued from day to day until all the witnesses in attendance have been examined. However, if the Court finds it necessary for exceptional reasons, it may adjourn the hearing beyond the following day (R. 1 (2) (a)).

1) Adjournment at the request of the party to the suit (R. 1(1))-

The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties and adjourn the hearing of the suit for reasons to be recorded. Provided that no such adjournment shall be granted more than three times to a party during the hearing of the suit.

2) Costs of adjournment (R. 1(2)–

In every case of adjournment, the Court shall fix a day for a future hearing and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.

3) Reasons for granting adjournment-

Granting adjournment is within the discretion of the Court. An adjournment may be granted by the Court on the ground of sickness of a party or his witness, or sickness of advocate, withdrawal of appearance by a pleader at the last moment, etc., provided that adjournment can only be granted for the reasons beyond the control of the party applying.

4) When adjournment may be refused-

Granting adjournment may be refused if the circumstance is within the control of the party, the pleader of the party is engaged in another Court, unreasonable conduct of the party or his advocate, refusal to examine or cross-examine a witness present in the Court, very old case, if there are directions by the Superior Court to dispose of the matter expeditiously if already adjournments for three times are given to the party etc.

5) If parties fail to appear on the day fixed (R. 2)-

Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes mentioned in O. IX or make such other order as it thinks fit.

Where any party to a suit to whom time has been granted fails (a) to produce his evidence, (b) to cause the attendance of his witnesses, or (c) to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may (i) if the parties are present, proceed to decide the suit forthwith; or (ii) if the parties are, or any of them is, absent, proceed under R. 2.

III. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES[5] (O. 18).

Order XVIII deals with the hearing of the suit and examination of witnesses. This is an important stage of any suit. Actual evidence of witnesses is recorded before the Court in the trial.

According to S. 153-B, witnesses’ evidence shall be taken orally in the open Court in the presence and under the personal direction and superintendence of the judge. Evidence is recorded in the open Court to ensure fairness in the trial. Sometimes, in exceptional cases, evidence may be recorded in a camera (i.e., in the closed chamber to avoid entry by others).

4 permits parties in every suit to file examination-in-chief of witness on affidavit. This provision is newly substituted to avoid wasting time in taking evidence before the Court.

1) Right to begin[6] (R. 1)-

Generally, the plaintiff has to prove his case; therefore, he has the right to begin to produce evidence unless the defendant admits the facts alleged by the plaintiff. It is based on the rule of burden of proof envisaged in the Indian Evidence Act from S. 101 to 114. According to it, the burden of proof of the case lies with that party, which would fail if no evidence is brought on either side. Therefore, if the plaintiff files a case seeking the Court to rely on his assertions in the plaint, he must first adduce evidence.

2) Production of evidence[7] (R. 2 and 3)-

On the date fixed for the hearing, the party having the right to begin shall state his case and produce evidence to establish his case. The other party shall then state his case and produce his evidence. He may then address generally on the whole case. The party beginning may then reply generally on the whole case (R. 2).

Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence generally on those issues or reserve it by way of answer to the evidence produced by the other party (R. 3).

3) Recording of evidence[8] (R. 4)-

As discussed already, the evidence of witnesses shall be taken orally in the open Court in the presence and under the personal direction and superintendence of the judge. However, amendment in R. 4 permits the parties in every suit to file examination-in-chief of witness on affidavit. In some cases, oral evidence can be recorded through the Court Commissioner. Such evidence may be recorded either in writing or mechanically. The remarks as to the demeanour of any witness may be recorded.

4) Recording of evidence in appealable cases[9]–

In appealable cases, the evidence of each witness shall be taken down by the judge in the language of the Court, in writing by or in the presence and under the personal direction and superintendence of the judge or from the dictation of the judge directly on a type-writer or mechanically (R. 5).

Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence taken in writing shall be explained to him in the language in which it is given (R. 6).

Where any question put to a witness is objected to by a party or his pleader and the Court allows it, the judge shall take down the question, answer, objection, and the name of the person making it together with the court’s decision thereon (R. 11).

5) Recording of evidence in non-appealable cases (R. 13)-

In a case in which an appeal is not allowed, it shall not be necessary to take down, dictate or record the evidence of the witnesses at length. But the Judge, as the examination of each witness proceeds, has to make in wiring or dictation directly on the type-writer or a mechanical device a memorandum of the substance of what the witness deposes, and such memorandum is to be signed by the Judge or otherwise authenticated and forms a part of the record.

6) Evidence recorded by another judge (R. 15)-

When a Judge, while recording evidence, quits his chair due to his death, transfer or any other cause, his successor may proceed to deal with the evidence recorded by him and proceed with the suit from the stage at which it was left.

7) Power to examine witness immediately[10] (R. 16)-

Where a witness is about to leave the jurisdiction of the Court or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or the witness, take evidence of such witness.

8) Arguments[11] (R. 2 (3A to 3D)-

A Court may permit a party or his pleader to argue a case orally and in addition, if the Court permits, may submit a written argument. Such written arguments shall form part of the record. A copy of such written arguments should be supplied to the other side.

*****

[1] सुनावणी [सुनवाई,]

[2] साक्षीदारास समन्स आणि उपस्थिती, [सम्मन और गवाहों की उपस्थिति,]

[3] समन्स बजावणी [सम्मन की तामील,]

[4] तहकूबी / पुढील तारीख [स्थगन/अगली तारीख]

[5] दाव्याची सुनावणी आणि साक्षीदारांची तपासण [दावे की सुनवाई और गवाहों की परीक्षा]

[6] पुरावा देण्यास सुरूवात करण्याचा हक्क [साक्ष्य आरंभ करने का अधिकार]

[7] पुरावा सादर करणे [सबूत पेश करना]

[8] पुरावा नोंदणे [सबूत की रिकॉर्डिंग]

[9] अपिल करता येणाऱ्यां केसमध्ये पुरावा नोंदण [अपील योग्य मामलों में साक्ष्य की रिकॉर्डिंग]

[10] साक्षीदाराचा पुरावा तात्काळ नोंदण [गवाह के साक्ष्य की तत्काल रिकॉर्डिंग]

[11] युक्तीवाद [बहस]