(..14..)
TRIAL
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
1. Adjournments.
2. Summoning and attendance of witnesses.
3. Hearing of the suit.
4. Examination of witnesses.
SYNOPSIS
Introduction-
I. SUMMONING AND ATTENDANCE OF WITNESSES (ORDER 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 (Order XVI-A)
II. ADJOURNMENTS (ORDER XVII)
1) Adjournment at the Request of the Party to the Suit (R. 1(1))
2) Costs of Adjournment (R. 1(2))
3) Grounds for Granting Adjournment
4) When Adjournment May Be Refused
5) If Parties Fail to Appear on the Day Fixed (R. 2 & 3)
III. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES (ORDER XVIII)
1) Right to Begin (R. 1)
2) Production of Evidence (R. 2 and 3)
3) Recording of Evidence & Examination-in-Chief on Affidavit (R. 4)
4) Recording of Evidence in Appealable Cases (R. 5 & 6)
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) Oral and Written Arguments (R. 2 (3A to 3D))
-----------
Introduction-
After the framing of issues, the next stage of the civil suit commences, which is the production of evidence by the parties. In common legal parlance, this stage is also comprehensively referred to as "the trial." The plaintiff has the primary responsibility to lead evidence in support of the assertions made in the plaint and in accordance with the specific issues framed by the Court. Upon the conclusion of the plaintiff’s evidence, the defendant is called upon to adduce his defense evidence.
I. SUMMONING AND ATTENDANCE OF WITNESSES (ORDER XVI)
1) List of Witnesses and Summons to Witnesses (R. 1)
Rule 1 mandates that the parties to the suit shall present to the Court a list of witnesses whom they propose to call either to give oral evidence or to produce documents, and obtain formal summonses for their attendance in Court. This list of witnesses must be filed on or before the date fixed by the Court, but strictly not later than fifteen days after the date on which the issues are framed.
The rule requires the party desirous of obtaining a summons to file an application stating the necessary particulars, such as the name, occupation, address of the witness, and the specific purpose for calling him. Upon such application, the Court will issue a summons to secure the attendance of the person.
A summons under this Order may be issued for two distinct purposes:
(i) Either to produce a document, or
(ii) To give oral evidence.
Rule 1(3) further provides that the Court may, for reasons to be recorded in writing, permit a party to call any witness whose name was omitted from the initial list, whether by summoning through Court or otherwise, provided the party shows sufficient cause for such omission.
Generally, a party requiring a witness must approach the Court to get a summons issued. However, Rule 1A empowers any party to bring any witness to give evidence or produce documents directly, without applying for a formal summons. The object behind this provision is to permit a party to produce his own witnesses if they are willing to appear without court intervention, thereby avoiding unnecessary paperwork. However, if the active assistance of the Court is required to compel attendance, an application for a summons is mandatory.
The Court also possesses the suo motu power to summon any person as a Court Witness under Rule 14 if it deems it essential to meet the ends of justice. Furthermore, by virtue of Section 30, the provisions relating to the issuance of a summons to give evidence apply equally to a summons to produce documents or other material objects.
2) Expenses of Appearance of Witness (R. 2)
Rule 2 provides that the party applying for a summons shall, before the summons is granted and within a period fixed by the Court, pay into Court a sum of money (diet money or bhatta) that appears to the Court to be sufficient to defray the traveling and other reasonable expenses of the person summoned in journeying to and from the Court.
3) Service of Summons (R. 8)
Every summons issued to a witness shall be served, as nearly as may be, in the same manner as a summons to a defendant. Consequently, the procedural rules governing the service of summons under Order V apply dynamically to the service of witness summonses. Additionally, under Rule 7A, the Court may permit the party themselves to personally serve the summons on the witness (dasti service).
4) Time for Service of Summons (R. 9)
The service of a summons must be made within a sufficient and reasonable timeframe before the date fixed for the hearing. This is intended to afford the witness adequate time for preparation and for traveling to the court premises where his attendance is required.
5) Penalty for Default (R. 10)
If a person who has been duly served with a summons fails to appear without a lawful excuse, the Court may resort to coercive measures. The Court may issue a proclamation or a warrant of arrest, and may also pass an order for the attachment of his property and impose a fine under Section 32 (not exceeding five thousand rupees) to penalize the default.
6) Attendance of Witnesses Who Are in Prison (Order XVI-A)
Where the Court deems it necessary to examine a person detained or confined in a jail, it may issue an order directing the officer-in-charge of the prison to produce that person before the Court to give evidence.
However, a strict geographical constraint applies: if the distance between the prison and the court house is more than twenty-five kilometers, no such order shall be made by a subordinate court unless it is satisfied that the examination of such person on a commission would be entirely inadequate to the ends of justice.
II. ADJOURNMENTS (ORDER XVII)
It is a well-settled general rule of civil procedure that once the hearing of evidence has commenced, the trial shall continue from day to day until all the witnesses in attendance have been examined. However, if the Court finds it highly necessary for exceptional and recorded reasons, it may adjourn the hearing beyond the following day (Rule 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 in writing.
To curb systemic delays, the Proviso to Rule 1(1) explicitly dictates that no such adjournment shall be granted more than three times to a party during the entire hearing of the suit.
2) Costs of Adjournment (R. 1(2))
In every instance where an adjournment is granted, the Court shall fix a day for the future hearing and shall make such order as it thinks fit with respect to the costs occasioned by the adjournment. The Court may order the party seeking the adjournment to pay exemplary costs to the opposite party as compensation for the delay and inconvenience.
3) Grounds for Granting Adjournment
The power to grant an adjournment rests entirely within the judicial discretion of the Court. However, this discretion must be exercised cautiously. An adjournment may be legitimately granted on grounds such as the sudden and severe sickness of a party, a material witness, or the conducting advocate, or the unexpected withdrawal of appearance by a pleader at the last moment. The fundamental principle is that an adjournment ought to be granted only for reasons completely beyond the control of the party applying for it.
4) When Adjournment May Be Refused
An adjournment will generally be refused by the Court under the following circumstances:
(a) The circumstances causing the delay are well within the control of the party.
(b) The pleader of the party is merely engaged in another Court (which is explicitly barred from being a ground for adjournment under Rule 1(2)(c)).
(c) There is unreasonable or dilatory conduct on the part of the party or his advocate.
(d) The advocate refuses to examine or cross-examine a witness who is physically present in the Court.
(e) The matter is a very old case, or specific directions have been issued by a superior Court (such as the High Court) to dispose of the matter expeditiously.
(f) The party has already exhausted their statutory quota of three adjournments.
5) If Parties Fail to Appear on the Day Fixed (R. 2 & 3)
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 specified under Order IX, or make such other order as it deems fit (R. 2).
Under Rule 3, where any party to a suit to whom time has been specifically 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, the Court may:
(i) If the parties are present, proceed to decide the suit forthwith on the basis of the existing record; or
(ii) If the parties are, or any of them is, absent, proceed under Rule 2 of this Order.
III. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES (ORDER XVIII)
Order XVIII comprehensively regulates the hearing of the suit and the oral examination of witnesses. This is the cornerstone stage of a civil suit where the actual evidence is recorded in a trial.
By virtue of Section 153B, the evidence of witnesses must generally be taken orally in open Court, in the presence and under the personal direction and superintendence of the Judge. This public transparency ensures absolute fairness in the trial. However, in exceptional cases involving highly sensitive matters (such as matrimonial disputes), the Court may direct the trial to be conducted in camera (in a closed chamber, restricting entry to the general public).
1) Right to Begin (R. 1)
As a general rule, the burden lies on the plaintiff to prove his case; therefore, the plaintiff has the right to begin to produce evidence. An exception arises only when the defendant admits the material facts alleged by the plaintiff and contends that either on a point of law or some additional facts, the plaintiff is not entitled to any relief.
This is directly synchronized with the rules of burden of proof envisaged under Sections 101 to 114 of the Indian Evidence Act (now relevant provisions under the contemporary Bharatiya Sakshya Adhiniyam). The burden of proof lies on the party who would fail if no evidence were led by either side.
2) Production of Evidence (R. 2 and 3)
On the date fixed for the hearing, the party having the right to begin states his case and produces his evidence. Thereafter, the opposite party states his case and adduces his evidence. The opposite party may then address the Court generally on the whole case, after which the party beginning is entitled to a general reply on the entire matter (R. 2).
Where there are several issues, and the burden of proving some of them lies on the defendant, the plaintiff (if he is the party beginning) may, at his option, either produce his evidence generally on all the issues or reserve it by way of a rebuttal answer to the evidence produced by the defendant on those specific issues (R. 3).
3) Recording of Evidence & Examination-in-Chief on Affidavit (R. 4)
While the rule historically required all oral evidence to be dictated before the Judge, the substituted Rule 4(1) mandates that in every suit, the examination-in-chief of a witness shall be filed on an affidavit. This landmark provision was introduced to drastically save the precious time of the Court.
A copy of this affidavit must be supplied to the opposite party. However, the subsequent cross-examination and re-examination of such a witness must be taken either orally in open Court or, if directed by the Court, recorded by a duly appointed Court Commissioner. Such evidence may be recorded either in writing or mechanically/videographed. The Judge or the Commissioner is fully empowered to record specific remarks regarding the demeanor of any witness while being examined.
4) Recording of Evidence in Appealable Cases (R. 5 & 6)
In cases where an appeal is allowed against the final decree, the evidence of each witness must be systematically taken down by the Judge. It must be recorded in the language of the Court, either in writing by the Judge himself, or in his presence and under his personal direction and superintendence, or dictated directly onto a typewriter or computer (Rule 5).
Where the evidence is taken down in a language different from that in which it is spoken by the witness, and the witness does not understand the language of the Court, the written record must be read over and explained to the witness in the language in which it was given (Rule 6).
If a question put to a witness is objected to by a party or his pleader, and the Court allows the question to be put, the Judge shall take down the question, the answer, the specific objection, and the name of the objector, along with the Court's formal decision thereon (Rule 11).
5) Recording of Evidence in Non-Appealable Cases (R. 13)
In cases where no appeal lies against the final order, it is not necessary to record the evidence of the witnesses at length. Instead, as the examination proceeds, the Judge simply writes down or dictates a memorandum of the substance of what the witness deposes. This memorandum is signed or otherwise authenticated by the Judge and forms a permanent part of the judicial record.
6) Evidence Recorded by Another Judge (R. 15)
Civil judges are subject to transfers, retirement, or unexpected demise. Rule 15 provides that when a Judge quits his office during the pendency of a trial, his successor-in-office may deal with any evidence already recorded by his predecessor. The successor judge can treat that evidence as if he had recorded it himself and proceed with the suit from the exact stage at which it was left.
7) Power to Examine Witness Immediately (R. 16)
Where a witness is about to leave the jurisdiction of the Court, or other urgent and sufficient cause is shown to the satisfaction of the Court as to why his evidence should be secured immediately, the Court may, upon the application of any party or the witness himself, record the evidence of such witness immediately (de bene esse examination). This evidence can later be read at any subsequent hearing of the suit.
8) Oral and Written Arguments (R. 2 (3A to 3D))
To streamline final determinations, Rule 2(3A) permits a party or his pleader to argue his case orally before the Court. Furthermore, a party shall submit written arguments in support of his case under a distinct heading before concluding oral arguments.
A copy of these written arguments must be served on the opposite side simultaneously. No adjournment shall ordinarily be granted for the purpose of filing written arguments, which form an integral part of the final judicial record.
*****