“Law Master’s” Publication
‘Trial’
Prof. .S. D. Bhosale
85
(..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
I. 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)-
II. 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)-
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‘Trial’
Prof. .S. D. Bhosale
86
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.
I. SUMMONING AND ATTENDANCE OF WITNESSES (O. XVI)-
1) List of witnesses and summons to witnesses (R. 1)
R. 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.
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‘Trial’
Prof. .S. D. Bhosale
87
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)-
R. 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 (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.
II. ADJOURNMENTS (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.
“Law Master’s” Publication
‘Trial’
Prof. .S. D. Bhosale
88
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 (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).
R. 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 (R. 1)-
“Law Master’s” Publication
‘Trial’
Prof. .S. D. Bhosale
89
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 (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 (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-
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,
“Law Master’s” Publication
‘Trial’
Prof. .S. D. Bhosale
90
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 (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 (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.
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