NOTES ON CIVIL PROCEDURE

Civil Procedure relevant to Revenue Courts/Tribunals

An interaction

V.S.R. AVADHANI 10/15/2018

Civil Procedure Code that mostly govern the trial in Civil Courts is applicable to Revenue Courts in a limited extent to ensure transparency in the proceedings of the authorities in adjudication….Read more

Interaction with All India Service Officers On Civil Procedure

Relevant to Revenue Courts/Tribunals

V. S. R. Avadhani [Formerly Secretary General, Supreme Court of India]

I. Jurisdiction of Civil & Revenue Courts and Tribunals

1. What is jurisdiction?

The expression ‘jurisdiction’ does not mean the power to do or order the act impugned, but generally it would import the authority of the judicial officer to act in the matter.1 The Court shall be competent to entertain the proceeding. The competency is legally termed as jurisdiction. The jurisdiction is of three kinds, namely statutory, pecuniary, and territorial. Every suit shall be instituted in the Court of the lowest grade competent to try it, is the decisive rule (S.15 C.P.C)

Statutory jurisdiction is one that is conferred on a particular Court by legislation. Examples: District Courts/Chief Judge, City Civil Courts are vested with a special jurisdiction under the following statutes: Arbitration and Conciliation Act, (Secs.9 and 34); Trade Marks, Special Marriage Act, Christian Marriage Act (matrimonial disputes); Indian Succession Act, Guardians and Wards Act, Hindu Minority and Guardianship Act, Trusts Act, Societies Registration Act; Motor Vehicle Accident Claims (as Tribunal); and as an Election Tribunal dealing with the election of the A.P. Municipalities and Corporations Act.

2. Competency of Court to adjudicate the dispute: The jurisdiction of a court implies its competence to entertain the dispute and adjudicate upon the same according to law governing the subject matter of the dispute. In other words, it can also be said that the right of action available to a party shall be decided by a court of competent jurisdiction. For this purpose there shall be two conditions to be satisfied by the party, namely, that the claim made by him is within the territorial and pecuniary limits of the court; and secondly, that his claim is of civil nature and is not barred expressly or impliedly by any law.

3. Cause of action and right to sue: Right to sue depends on cause of action which an aggrieved person is able to show that he suffered legal injury. Cause of action for a suit is not one instance or one important even from commencement of fiduciary, jural or otherwise relationship between parties till there is violation or breach of an obligation in relation to such relation.2 Before a court takes cognizance of a claim, suitor must show territorial nexus, pecuniary nexus or protective nexus to enforce his right to sue by invoking the jurisdiction of the court.

4. Territorial jurisdiction of High Court in writs: In order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or a part of it arose within its jurisdiction.

1 Tayen vs. Ramlal, ILR 12 All 115; Anwar Hussain vs. Ajoy Kumar, AIR 1965 SC 1651 2 Superintending Engineer, Irrigation & Power Department vs. Steel Authority of India Ltd (2009) 6 ALD 410, (2009) 6 ALT 51`6

The place from where an appellate order or a Revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum.3The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the court.

Like civil courts, question of jurisdiction of High Courts to entertain a writ petition would also depend on the cause of action, wholly or partly arising in the local limits of the State High Court. In order to exercise jurisdiction to entertain a writ petition, the High Court must be satisfied, from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. After 42nd amendment to the Constitution, the High Court could issue writs against the authorities outside its territorial jurisdiction provided within the territorial jurisdiction of that Court, where the cause of action arose wholly or in part.

Although in view of Section 141 of the Code of Civil Procedure, the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure, and Clause (2) of Article 226, being in pari materia, the decisions of the Supreme Court rendered on an interpretation of Section 20(c) CPC apply to writ proceedings also.4 Clause (2) of Article 2265 makes it clear that the High Court, exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. The collocation of the words in Article 226 - "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of Courts. This would mean that, even if a small fraction of the cause of action (that bundle of facts which gives the petitioner a right to sue) accrued within the territories of a High Court, the High Court of that State will have jurisdiction.6

In the absence of an averment that the cause of action, or a part of it, has arisen within the territorial jurisdiction of the concerned High Court the writ petition would be dismissed. 7 The Court will find out in each case whether the jurisdiction of the court is rightly attracted by the alleged ‘cause of action’.8

5. Inherent jurisdiction of Civil Court: Before a court decides a particular matter, it must not only have jurisdiction to try the suit before it but must also have the authority to allow the relief prayed for. In the bygone days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but hardly ever provided forums for remedies. The result was that any person having a grievance that he had been wronged or his right was being affected, could approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy-ubi jus ibi remedium. 3 Union of India and Others Vs. Adani Exports Ltd. and Another (2002) 1 SCC 567 4 M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr (2004) 6 SCC 254, AIFR 2004 SC 2321, (2004) 5 Scale 304, (2004) Supp 1 JT 475, (2004) 2 RCR (Civ) 720, (2004) 168 ELT 3,(2004) 3 Supreme 757, (2004) 3 BBCJ (SC) 189, (2004) 3 JCR (SC) 92; 5 Article 226 (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories 6Rajendran Chingaravelu v. R.K. Mishra, Additional Commissioner of Income Tax 7 Sarabjit Kaur vs Union Of India and Ors AIR 2000 SC 3637, (1999) 9 SCC 29 8 M/S. Kusum Ingots & Alloys Ltd(Supra); Nasiruddin vs State Transport Appellate AIR 1976 SC 331, 1976 SCR (1) 505, (1975) 2 SCC 671

Sec. 9 of C.P.C. provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. This section provides that civil court shall have jurisdiction to try all suits of a civil nature, excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per sec. 9, in all types of civil disputes, civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on other tribunal or authority9 The Administrative Tribunal Order, Industrial Disputes Act are some legislations which have impliedly taken away the jurisdiction of civil court to try any issue relating the conditions of service of a civil servant or industrial workmen. The Representation of People’s Act constituted Election Tribunals thereby barred any suit questioning validity or correctness of process of Election to House. If there is an agreement between parties providing arbitration to resolve any dispute between them, they have, by agreement excluded the jurisdiction of court. In case any objection as to the jurisdiction basing on the clause of arbitration is taken, the civil court has to decide that question under Sec.8 of Arbitration and Conciliation Act, 1996, and refer the parties to the arbitration.

The presumption in law is in favour of jurisdiction of civil court. In other words, the presumption regarding jurisdiction is in favour of existence, rather than exclusion of jurisdiction. The test adopted in examining such jurisdiction is whether the legislative intent to exclude arises explicitly or by necessary implication; and, whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.

Ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.10 The word ‘shall’ used in sec. 9 of the Code makes it mandatory and so, the court cannot refuse to entertain a suit if it is of description mentioned in the section. For maintainability of suit, it does not require any authority of law and it is enough that no statute bars the suit.11

Sec. 9 has recognised two bars for invoking its jurisdiction, namely, express and implied bar. As far as ‘express bar’ mentioned in Section 9 C.P.C is concerned it does not create much difficulty. Jurisdiction of Civil Court under sec. 9 is a plenary one; therefore any bar to entertain a suit under any statute must be laid down by it either expressly or by necessary implication. The problem arises in the case of implied bar of suit by some other Act.

9 Section 9 - Courts to try all civil suits unless barred: The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 1[Explanation I].-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. 2[Explanation II .-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.] 1. Explanation renumbered as Explanation I thereof by Act 104 of 1976, section 5 (w.e.f. 1.2.1977) 2. Inserted by Act 104 of 1976, section 5 (w.e.f. 1.2.1977). 10 Rajasthan SRTC v. Bal Mukund Bairwa 2009 (2) S.C.T. 244, (2009) 4 SCC 299 11 Ganga Bai vs. Vijay Kumar AIR 1974 SC 1126, (1974) 2 SCC 393, (1974) 3 SCR 882, (1974) BBCJ (SC) 609

This question has exhaustively been dealt with by the Constitution Bench (5 judges) judgment of the Supreme Court12 which has laid down the following rules:

(1) Where the statute gives finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

Provisions excluding jurisdiction of civil courts should receive strict construction.13 Even in cases where the statute accords finality to the orders passed by the Tribunals, the Court will have to see whether the

12 United India Insurance co. Ltd vs. Ajay Sinha (2008) 7 SCC 454, (2008) 8 Scale 509, (2008) 6 JT 517, (2008) 2 ArbLR 425 (SC), AIR 2008 SC 2398, (2008) MhLJ 329, (2008) 6 MLJ 832 (SC); Dhulabhai v. State of M.P., AIR 1969 SC 78 (CB), (1968) 3 SCR 662, (1969) 22 STC 416, (1969) JLJ (SC) 1 13 Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others AIR 2005 SC 2392, (2005) 10 SCC 51, AIR 2005 (SCW) 2548, (2005) 3 Supreme 396, (2005) 4 JT 472, (2005) 4 Scale 117, (2005) 3 RCR (Civ) 404, (2005) 3 CivCC 397, (2005) 3 ALT 49 (SC), (2005) 2 ESC 272 (SC), (2005) 3 MLJ 65 (SC); Upper Doab Sugar Mills vs. Shahdara (Delhi) Saharanpur Light Railway AIR 1963 SC 217,

Tribunal has the power to grant the reliefs which the Civil Courts would normally grant in suits filed before them. If the answer is in negative exclusion of the Civil Courts jurisdiction would not be ordinarily inferred.14

6. Tests to determine the exclusion of jurisdiction: The following points may be kept in mind for determining whether civil courts’ jurisdiction is excluded.15

1. If there is express provision in any special Act excluding the jurisdiction of civil court to deal with matters specified there under, the jurisdiction of ordinary civil court shall stand excluded.

2. If there is no express provision, but an examination of the provisions of the Act lead to a conclusion in regard to exclusion of jurisdiction, the Court has to inquire whether any adequate and efficacious alternative remedy is provided in the Act. If the answer is in affirmative, the jurisdiction of civil court is excluded. If no such adequate and effective alternative remedy is provided, then the exclusion of jurisdiction of civil court cannot be inferred.

3. Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is nullity.

Where the statutory form is competent to grant the relief that a civil court can grant, then the civil court cannot entertain a suit. For example, if the Industrial Tribunal can decide the legality of order of termination of employee, the civil suit challenging the correctness of order is unsustainable.16 However, where the termination is void on account of non-observance of principles of natural justice, the suit for declaration that the removal order is null and void is maintainable.

A charged employee is entitled to a fair hearing in the departmental proceeding in compliance with common law principles of natural justice. If the hearing is unfair, and the principles of natural justice are violated, the bar created by any such statute against the jurisdiction of civil court, is inoperative17.

Bar on Civil Court`s jurisdiction shall not be readily inferred. Even if statute grants finality to order of Waqf Tribunal, it has to be seen whether Tribunal has power to grant relief which is normally granted by Civil Court. Exclusion of jurisdiction of civil court is envisaged by Sections. 6, 7, and 85 of Wakf Act, 1995 is not absolute and therefore, eviction suit against tenant of wakf property is not tenable before the Wakf tribunal18. Civil Court has no jurisdiction to declare a person belonging to a particular tribe/caste19.

Under Indian Electricity Act, machinery is provided to enquire into the complaint of excess billing. Without availing that alternative remedy, no civil suit is maintainable20. If a jurisdictional question or the 14 Ramesh Gobind Ram v. S.H.M. Waqf, AIR 2010 SC 2897 15 Dhruv Green Field Ltd vs. Hukam Singh (2002) 6 SCC 416, AIR 2002 SCW 3227, (2002) 5 Scale 487, AIR 2002 SC 2841, (2002) 5 Supreme 257 16 Chandra Kant Tukaram Nikam vs. Municipal Corporation of Ahmedabad (2002) 2 SCC 542, AIR 2002 (SCW) 710, AIR 2002 SC 997, (2002) 1 LLJ 842, (2002) 1 Supreme 529,(2002) 1 JT 578, (2002) 2 JLJR (SC) 18, (2002) 1 UJ 525, (2002) 1 BBCJ (SC) 149, 17 Rajasthan State Road Transport Corp. vs. Bal Mukund Bairwa 2009(4) SCC 299) 18 Ramesh Gobindram vs. Sugra Humayun Mirza Wakf 2010 AIR SCW 5185 (S.C) 19 A.P.S.T. Employees Association vs. A. P. Bhanjdeo 2001 (6) A.L.D.582 (FB) 20 Punjab State Electricity Bd. vs. Aswani Kumar 1997 (5) SCC 120

extent thereof is raised before a tribunal, the tribunal must necessarily decide it unless the statute provides otherwise; only when a question of law or a mixed question of fact and law are decided by a tribunal, the High Court or the Supreme Court can exercise their power of judicial review21.

7. Difference between ‘court’ and ‘tribunal’ for the purpose of Sec. 9 of the CPC: The ‘courts’ obviously mean Civil Courts as the Code applies to Civil Courts only. All Courts are Tribunals but all Tribunals are not Courts; similarly all Civil Courts are Court; but all Courts are not Civil Courts. There is a broad distinction between a ‘court’ and a ‘tribunal’. The decision of the court is final but the decision of Tribunal may not be final.22

8. Meaning of ‘suit’ used in sec. 9 of the CPC: The word ‘suit’ used in Sec. 9 of the Code has a technical meaning which denotes the proceedings instituted in a civil court. All legal proceedings, however filed before the courts in the country are not ‘suits’. There are petitions/applications/complaints instituted or filed before various courts, tribunals and other quasi judicial bodies but they are not ‘suits’ as per sec. 9 of the Code. For example, a complaint before a Consumer Forum is not a suit.23

9. ‘Suits of civil nature’ as per sec. 9: The word ‘civil’ according to dictionary meaning, it is ‘relating to the citizen as an individual civil right. In Black’s Legal Dictionary, it is defined as, ‘relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings’. In law, it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc also came into the fold of ‘civil’ nature in latter times and now they too pertain to the larger family of ‘civil’. Its width has been stretched further by using the word ‘nature’ along with it in sec. 9 of the Code. That means, even those suits are cognizable which are not only civil but are even of civil nature.

10. When the civil court retains jurisdiction despite exclusion: Where a statute has provided that the authority has to follow certain procedure for passing an order and if such procedure is not followed or where the authority had not followed the principles of natural justice, the inherent jurisdiction of civil court to challenge the arbitrariness of the administrative order can be invoked by the aggrieved.24 Civil Court’s jurisdiction is not ousted if procedural irregularities in a case conducted by a Tribunal or a statutory authority are well proved before the Court.25 If the order of the tribunal is obtained by playing fraud, that order is vitiated and then the Civil Court has jurisdiction to recall that order in a properly constituted suit.

II. Appearance of parties

1. Appearance

21 Cellular Operators Association of India vs. UIO (2003) 3 SCC 186) 22 Nahar Industrial Enterprises Ltd (Supra) 23 E. I. C. M. Exports Ltd vs. South Indian Corpn (Agencies) Ltd., (2009) 14 SCC 412, (2009) 10 Scale 22, (2009) 7 SCJ 410, AIR 2009 SC 518, (2009) 16 JT 425, (2009) 7 MLJ (SC) 518, (2009) 6 AllLJ 458, (2011) 7 RCR (Civ) 32, (2009) 3 CPJ (SC) 73 24Delhi Financial Corporation vs. Rajiv Anand (2004) 11 SCC 625 25 Smt. Parbati Mallick vs. Laxman Mishra and others (2014) 1 OLR 422 (Ori), (2014) 118 CLT 65

Every plaint or other proceeding shall be signed by the concerned party who shall personally appear. But the party can also appear through his (a) power-of-attorney, authorizing him to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade or business for and in the names of parties not residing within the local limits of the jurisdiction of the Court within such limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, application and acts. Or.III Rr.1 and 2 read as below:

Order III Rule 1 - Appearances, etc., may be in person, by recognized agent or by pleader: Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 1[appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person

1. Substituted by Act 22 of 1926, section 2, for "duly appointed to act".

Order III Rule 2 - Recognized agents: The recognized agents of parties by whom such appearances, applications and acts may be made or done are:--

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

2. Appearance by agent is not for giving evidence: The appearance by authorised agent or a power of attorney is not confined to civil proceedings only but also can be done in criminal proceedings. Thus, the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Sec. 138 of the Negotiable Instruments Act.26 Power to appear given to the authorised agent cannot be construed as power to give evidence on behalf of the principal. But the power of attorney holder cannot depose in the place of principal. If the power of attorney holder has done ay acts in pursuance of power given to him, he may depose in respect of such acts only but cannot depose for the principal for the acts done by the principal and not by him. Similarly he cannot depose for principal in respect of a matter as regards which only principal can have personal knowledge and in respect which principal has to be cross examined.27The position of power of attorney where he can give evidence was made clear by the Supreme Court.28 According to it, the agent can give evidence for the principal, if-

26 A. C. Narayanan vs. State of Maharashtra AIR 2014 SC 630, (2014) CrLJ 576, (2013) 12 524, (2013) 6 Supreme 705, (2014) 1 LW (SC) 698, (2013) 4 JBCJ (SC) 135, (2014) 1 JLJR (SC) 48, ((2013) 4 CCC (SC) 292 27 S. Kesari Hanuman Goud vs. Anjum Jehan (2013) 8 JT 200, (2013) 3 BBCJ (SC) 409, (2013) 2 JLJR (SC) 359, (2013) 2 JCR (SC) 467 28 Man Kaur (Dead) by LRs vs. Hartar Singh Sangha (2010) 10 SCC 512, (2010) 7 SCJ 814, (2010) 10 JT 565, (2010) 7 Supreme 209, (2010) 9 UJ 4569, (2010) 7 MLJ (SC) 1059, (2011) 1 RCR (Cri) 189, (2010) 4 CivCC 792, (2010) 83 AllLR (SC) 722, (2010) 4 RLW (SC) 3663, (2010) 3 LS (SC) 140

(a) he has done any act or transactions in pursuance of the power of attorney, to speak to those acts or transactions;

(b) he can sign the plaint and institute the suit and can give ‘formal evidence’ about the validity of power of attorney;

(c) where the principal at no point of time had handled or dealt with or participated in the transaction and had no personal knowledge and if the entire transaction is done by the agent, necessarily the agent or attorney holder alone can give evidence in regard to the transaction;

(d) Where different attorney holder had dealt with the matter at different stages of transaction, if the evidence has to be led as to what transpired at those different stages, all the attorney holders will have to give evidence;

(e) Where it requires that the plaintiff or other party to a proceeding has to establish a fact with reference to his ‘state of mind’ or ‘conduct’ that person alone has to give evidence not an attorney holder but as a witness of fact.

3. Appearance by Recognized Agent (Or.3 Rules 1 and 2)

A reading of Or.3 R1 makes it clear that appearances, application or act in or to any Court, required or authorized by law to be made or done by a party in a Court, except otherwise expressly provided by any law for the time being in force, can be made or done either by the party-in-person or his recognized agent, or by a pleader appearing or acting, as the case may be, on his behalf. Rule 2 defines who is a recognized agent; detailed under clause (a) of Rule 2, detailed that the person holding Power of Attorney is a ‘recognized agent’. A reading of Rule (1) of Order 3 makes it further clear that such appearance by person or recognized agent, or by a pleader is subject to any other law, which includes the Advocates Act, 1961, where under Section 32 empowers the Court to permit a person other than an advocate to ‘appear’ before the Court in any particular case whereas Section 33 prohibits any person other than an advocate to ‘practice’. The agent or a GPA holder who is authorized by the party to appear and represent the case, has to seek the permission of the Court and the Court after satisfying itself with regard to the level of capability of such a person for pleading on behalf of the party concerned, can grant permission in exercise of the discretionary jurisdiction under Section 32 of the Advocates Act94.

Certain other provisions of the Code relating to Order III Rules 1 and 2 are also required to be examined. While Order III enables the holder of a power of attorney to appear, apply and act on behalf of a party to a suit as his recognised agent, Order VI Rule 14 enables any person duly authorised by a party to sign the pleading if the party pleading is, by reason of absence or for other good cause unable to sign the pleading.

Thus, it appears from Order VI Rule 14 that even in the absence of a power of attorney, a party to a suit is entitled to have the pleading signed on his behalf by any person duly authorised by him to sign. This inference is inevitable on account of the difference in the expression used in Order III Rules vis-avis Order VI Rule 14. While Order III Rule 2 uses the expression ‘recognised agents’ and ‘persons holding powers of attorney’; Order VI Rule 14 uses the phrase ‘any person duly authorised by him’. Rule 15 (1)

of Order VI goes one step further and empowers ‘some other persons’ to verify the pleadings, if it is proved to the satisfaction of the Court that he is acquainted with the facts of the case.

All the above provisions are the rules relate only to the procedure and the better view would be to regard them as mere matters of procedure and to hold that if a plaint is not properly signed or verified but is admitted and entered in the register of suits, it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint.29

In terms of Order III Rule 1 of the Code, a litigant who was represented by an advocate is bound by the concession made by such advocate. If it is binding on the parties, against, it is subject to just exception, and they cannot resile from such concession. It is different if a concession is made on a question of law. A wrong concession on legal question made by the advocate may not be binding upon the client.30

Branch Manager of the Bank is competent to represent the bank and he can file suit and verify pleadings on behalf of the plaintiff bank.31The Court has to verify at the time of institution of a suit whether the verification of the pleadings and institution of the suit was done by a competent person, before registration of the suit and any objection regarding the same cannot be gone into thereafter, as it would not go to the root of the case.32

One of the plaintiffs can represent the other plaintiff under this provision. Thus where, application filed under Order III Rules 1 and 2 at the stage of trial or arguments, to permit one of the plaintiffs to act as power agent of other plaintiffs could be allowed. In that case, no permission was sought for at the time of the institution of the suit. However the High Court held that it was a curable defect and therefore an application could be filed at any stage of the suit and the court may allow it when there was no prejudice cause to the other side.33 Once granting permission to the party to appear by agent or power of attorney holder does not impair the powers of the court to direct the party to appear in person.34

4. Appearance through agent - Some important notes on Power of Attorney

Filing affidavit of the principal to prove that the power of attorney is subsisting is essential95. Rule 32 of CRP is not mandatory. If an agent is authorized to undertake signing of pleading, adducing of evidence and advancing of arguments, the agent shall be permitted in writing and the party has to file an affidavit that he has duly authorized the agent to represent him instead of an Advocate. In case a party executing a power of attorney in favour of another person, the GPA holder also cannot be permitted to 29 All India Reported Ltd vs. Ramchandra AIR 1961 Bombay 292 30 BSNL vs. Subash Chandra Kanchan AIR 2006 SC 3335, AIR 2006 SCW 5070, (2006) 12 JT 25, (2006) 9 Scale 217, (2006) 4 RCR (Civ) 499, (2006) 7 Supreme 180 31 G. Purnachander vs. Syndicate Bank, Warangal Branch, Warangal (2014) 3 ALD 29 32 Md. Munawar Hussain vs. Usha Kiran Chit Funds, Sathupalli, Khammam Dt and others (2003) 6 ALD 796, AIR 2004 AP 63, (2004) 1 AndhWR 278 33 Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another (2006) 1 SCC 75, AIR 2005 (SCW) 5851, AIR 2006 SC 269, (2005) 9 Scale 302, (2005) 7 Supreme 754, (2005) 9 JT 454, (2006) 1 JLJR (SC) 24, (2006) 1 PLR (SC) 673, (2005) 2 RCR (Rent) 637, (2006) 1 RCR (Civ) 18, (2006) 1 CivCC 416 34 Jagraj Singh vs. Birpal Kaur AIR 2007 SC 2083, (2007) 2 SCC 564, (2007) 2 Supreme 201, (2007) 3 JT 389, (2007) 3 ALT (SC) 86, AIR 2007 SCW 3201, (2007) 1 DMC 351, (2007) 2 CivCC 543, (2007) 2 RCR (Civ) 108, (2007) 2 WLR (SC) 18, (2007) 1 GLH (SC) 414, (2007) 2 AWC (SC) 1608, (2007) 3 BBCJ (SC) 216, (2007) 3 JCR (SC) 134

represent the party in the suit for all purposes, namely to sign the pleadings, to adduce evidence and to advance arguments, unless an affidavit is filed by the party affirming that he has authorized his GPA holder to represent his case for the above purposes96. Though so far as the presentation of the plaint signed and verified by the power of attorney holder coupled with the very power of attorney executed in his favour in the Court, does not require any permission from the Court for an advocate duly appointed by the power of attorney holder, duly authorizing him in this behalf, entered appearance in the Court. The absence of an affidavit under Rule 33 however does not invalidate the suit resulting in dismissal

thereof97. A GPA cannot be allowed to resort to unscrupulous and vexatious litigation and such practice of a GPA can be curbed by the High Court. The Vexatious Litigation (Prevention) Act, 1949 enacted by composite Madras State enforced in Andhra Area by Andhra Adaptation Order, 1953, is not extended to Telangana area98.

Rules 1 and 2 of Order III CPC are subject to the provisions of the Advocates Act, 1961, and in particular sections 32 and 33. Therefore, a power of attorney holder who is not an Advocate cannot be placed on the same footing as an Advocate. A non-advocate cannot be permitted to address the Court on behalf of a party on the strength of the power of attorney and for that purpose the party has to seek the leave of the Court. Grant of such leave is governed by Sec. 32 of the Advocate Act. As laid down by the Supreme Court a private person who is not advocate, has no right to argue for a party without the permission of the court for which the motion must come from the party himself.35

A non-advocate, when he seeks permission to appear for the party, cannot be permitted to address the Court on the strength of the power of attorney. But in certain special circumstances, the court has power to grant permission to non-lawyers to plead/argue cases according to Sec. 32 of the Advocates Act. 36 A non-lawyer cannot be permitted to appear and argue under the garb of a general power of attorney regularly in number of matters.37A court cannot permit an expert on behalf of a party to cross examine another expert before the advocate commissioner who was appointed to record the evidence of expert in a given case. However, the court pointed out that no special circumstances are pleaded in the affidavit of the party applying for such permission.38

5. Advocate cannot swear affidavit for the party

Vakalathnama authorizes the Advocate to appear. He has no power or authority to file or sign affidavits before Court except by way of third party affidavit in proof of affidavit allegations made by a party. Practice of Advocates filing affidavits on behalf of parties seeking redressal, is not proper and no relief can be granted to petitioners on affidavits filed by Advocates appearing for parties99. A GPA is not

competent to give evidence for the party for whom he is appearing under a GPA100. A GPA can give evidence on his own knowledge but not as representative of the party101.

35 Harishankar Rasiogi vs. G. Giridhari Sharma AIR 1978 SC 1019 36 Madupu Harinarayana @ Maribabu vs. Learned I Additional District Judge, Kadapa (2011) 4 ALD 61 (DB),m (2011) 2 ALT 405 37 T.. D. Dayal vs. Madupu Harinarayana (2013) 6 ALD 734 (DB), (2013) 6 ALT 681 38 Kovvuri Kanaka Reddy vs. Nadella Yedukondalu (2014) 3 ALD 305, (2014) 3 ALT 578

Appearance of party by authorized agent before Family Court in matrimonial proceedings under the Hindu Marriage Act, not maintainable generally102.

III. Suits by or against minors and persons of unsound mind

1. Suits by or against minors, persons of unsound mind etc.: Minors and persons of unsound mind shall appear through next friend or guardian as the case may be. Such persons who are incapable of representing themselves, in case of plaintiffs - the suit or proceeding shall be instituted through next friend (Or. XXXII), or in the case of defendants to be defended by a guardian. In case the plaint or other proceeding is filed by a person as next friend of minor plaintiff or under disability, that next friend shall file an affidavit of some disinterested person that the next friend has no direct or indirect interest, in the subject-matter of suit or other matter, and is a fit and proper person to act as next friend. (Rule 172 CRP) In case the minor etc., has to be defended in a suit or other proceeding, the plaintiff who propose to apply for appointment of a guardian ad-litem of minor defendant, shall give not less than six days’ notice of the application to the father, or guardian, or custodian of such minor (Rule 173 CRP) If the guardian ad-litem of the minor or person under disability is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant or that the defendant will be prejudiced in his defence thereby, the Court may order the plaintiff from time to time to pay money to the guardian for the purpose of his defence and all such moneys so paid shall form part of the costs of plaintiff in the suit; the order may be made conditional upon the guardian filing in Court his accounts of the money so received by him. (Rule 174 CRP)

2. Difference between ‘next friend’ and ‘guardian’: The ‘next friend’ mentioned in Rule 1 of Order 32 can act only as a person representing the interests of minor involved in the suit. Beyond that, he does not have power to deal with interests of the minor. To certain extent a guardian appointed by the Court or a person who can act as a guardian under law would have some powers to take certain decisions, for and on behalf of the minor, may be in a limited scale and subject to control by the Court. Guardian can take decisions by himself in the interests of the minor before or after filing the suit, whereas the next friend can do nothing more than keeping the grievance of the minor before the Court and seek adjudication103.

A guardian appointed by the Court to protect the interest of the minor has to perform his functions personally and cannot execute a power of attorney in favour of somebody to discharge those functions.39

3. To whom this procedure is applicable: It is applicable to a ‘minor’ (Or.32 R.1).40 If a suit is presented by a minor, without next friend, Rule 2 mandates that the plaint shall be taken off the file. This would not be understood as ‘rejection of the plaint’. If a plaint is taken off the file, on account of there not being a next friend, the defect so notice is curable. Whereas a plaint can be rejected where the defect is not curable and falling within the contingencies of Order VII Rule 11 of the Code and rejection terminates the suit once for all the only remedy would be to prefer a regular appeal.

39 Ganesh Shankar R. Upadhyay vs. Brahmaprakash S. Upadhyaya (2012) 2 BomCR 362, (2011) 5 MhLJ 747, (2011) 6 AllMR 503 40 Order XXXIII Rule 1: Minor to sue by next friend: Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.

A minor will be represented by guardian also. It is only when a minor figures as a defendant the court would appoint a guardian for him. The concept of ‘next friend’ does not exist, if the minor figures as defendant in a suit. The only exercise which the court can undertake in a suit, where it is filed by a minor through a next friend, is that it can insist on furnishing of security by the next friend for payment of all costs incurred or likely to be incurred by the defendant in such a suit. For this purpose Rule 2A may be read.41

It is explained that ‘minor’ means a person who has not attained his majority within the meaning of Section 3 of the Indian Majority Act, 1875. The procedure provided in Rules 1 to 4 (except R.2-A) is widen so as to govern the suit or proceedings relating to persons of unsound mind and to persons who are not adjudged as persons of unsound mind but are found by the Court on enquiry to be incapable, by reason of any mental infirmity, for protecting their interest when suing or being sued. Under Order 32 Rule 15, a guardian can be appointed for a defendant who is deaf or/and dumb. The words “or mental infirmity” used in the Rule enlarges the scope of Order 32 Rule 15. While the old Section 463 of the Code of 1882 was applicable to persons of “unsound mind” only, the present rule applies to persons of unsound mind as well as to persons who are suffering from any mental infirmity in consequence of which incapable of protecting his own interests.42 Order XXXII Rule 15 as it stands amended by the amendment Act No. 104 of 1976 provides that Rules 1 to 14 (except Rule 2A) shall so far as may be, apply to persons adjudged before or during the pendency of the suit to be of unsound mind and shall also apply to persons who though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity of protecting their interests when suing or being sued.

In an application under Rule 15, to prove that he is a person of unsound mind, the plaintiff filed third party affidavits and they are accepted by the Court, after hearing the Counsel. When this procedure is challenged as inadequate to comply with the ‘enquiry’ under the Rule, the A.P. High Court is of the view that, in the absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it would not be possible to say that the procedure adopted by the trial Court was not in conformity with the Rule105.

4. Who can act as next friend or guardian? Under Order XXXII Rule 3 (new Rule introduced by A.P in lieu of Rules 3 and 4) C.P.C., any person who is of sound mind and has attained the age of majority may act as next friend of a minor or as his guardian for the suit, provided the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant or in the case of a guardian for the suit, a plaintiff. If any guardian was already appointed by a competent authority, that person alone shall be appointed as guardian for the suit. But, it is also open to the Court to appoint a person other than the guardian appointed by any competent authority, in the welfare of minor, but only after recording reasons therefor. Under Rule 27 of CRP if an application is made to add any person as plaintiff, or as the next friend of a plaintiff, he shall either appear in person, in which case his consent to

41 Order XXXII Rule 2A: Security to be furnished by next friend when so ordered: (1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. (2) Where such a suit is instituted by an indigent person, the security shall include the Court-fee payable to the Government; (3) the provisions of rule 2 of Order XXV shall, so far as may be apply to a suit where the Court makes an order under this rule directing security to be furnished. 42 In re Periaswami Goundan AIR 1954 Mad 810

be so added shall be recorded by the Judge in writing or a written consent thereto signed by him, and authenticated by a person authorized to take affidavits shall be filed in Court.

5. How to appoint a guardian: The consent of the said person in writing for his appointment as guardian is necessary. Besides notice to the proposed guardian, a notice on the application for appointment of guardian to the minor defendant shall also be served on the persons interested in the minor defendant. In the absence of any person fit and willing to act as guardian, the Court may appoint any of its officers to be such guardian directing that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested or out of the property of the minor, and also give directions for the repayment or allowance of such costs as just and necessary in the circumstances of the case.(See sub-rules (1) to (11) of Rule 3 of A.P)

6. Security to be obtained from guardian/next friend: Under Rule.6, any money or other movable property shall not be received by the next friend or guardian without the leave of the Court, either in case of compromise or by way of a decree or order in favour of the minor. While granting such leave, the Court may require such security and give such directions as will in its opinion, sufficiently protect the property from waste and ensure its proper application. Where such next friend or guardian of minor is the manager of Hindu undivided family and the decree or order relates to the property or business of the family or he is the parent of the minor, the Court may dispense with such security (R.6 (2) proviso) According to A.P amendment in Rule 7, sub-rule (2), it is provided that the Court may in its discretion dispense with such security and impose such other condition as it thinks fit, in case where it is satisfied that any money is needed for the maintenance, medical care or education of the minor and the guardian or next friend is unable to furnish security. (Notification No ROC 2756/56, dt.5/12/1959)

7. Retirement of next friend: A next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred (.R.8) A next friend can be removed under Rule.9 in the following circumstance: (a) if he is related with the defendant whose interests are adverse to minor plaintiff and he is unlikely protect the minor’s interest (b) he does not do his duty; or (c) during the pendency of the suit, ceases to reside within India. If such removal is occasioned on the application of any person who is appointed earlier by any competent Court/authority as guardian of the minor, the Court may appoint him as next friend after removal of the person appointed by that Court as such. During this process i.e. after removal and before appointment of next friend, the proceeding in the suit shall be stayed. (R.10)

8. Retirement or discharge of guardian: But in case of a guardian of minor for the suit desires to retire or does not perform his duty or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs. If the minor plaintiff attains majority, Rule 12 provides that he will elect whether he will proceed with the suit or proceeding. If he elects to proceed with the suit etc., he shall apply for an order discharging the next friend and for leave to proceed in his own name. Under Rule 13, it is laid down, when the minor plaintiff on attaining majority wants to repudiate the suit, he shall apply to have his name struck out as co-plaintiff and if he is not a necessary party in the opinion of the Court, suit shall be dismissed insofar as he is concerned. Except Rule 2-A, Rules 1 to 14 are applicable to persons of unsound mind. Remember, as per the A.P.

Amendment, Rule 17 of Or. XXXIV, in suits relating to the person or property of a minor or other person under the superintendence of the Court of Wards, the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.

9. Cases where ‘Leave’ of Court is necessary: A next friend/guardian for the suit shall not receive any money or other movable property on behalf of minor in a compromise before decree or order or under a decree or order in favour of the minor. If no next friend/guardian for the suit has not been appointed or declared to be guardian by competent authority for the property of minor or under a disability, and a leave is granted by Court to receive the property, it shall insist for furnishing adequate security to protect the property from waste and ensure proper application (Or.23 R.6). But for the reasons to be recorded, the Court can dispense with such security while granting leave, if such next friend/guardian is the manager of a HUF and the decree or order relates to the property or business of the family or he is the parent of the minor.

A leave is required to be expressly recorded in the proceedings, for the next friend/guardian to enter into any agreement or compromise on behalf of a minor with reference to the suit. For the purposes of obtaining leave an affidavit of next friend/guardian and in case the minor is represented by a pleader, the certificate of that pleader to the effect the agreement or compromise is for the benefit of the minor shall be filed. The Court has power to examine whether the agreement/compromise proposed is for the benefit of the minor, notwithstanding such affidavit and certificate. Any agreement/compromise entered into without the leave of Court shall be voidable against all parties other than the minor. (Or.32 R7)

10. Procedure on attaining majority: Order 32 Rule 12 prescribes procedure in case the minor plaintiff/applicant attains majority. No such procedure is prescribed for the minor defendant on attaining majority. A minor plaintiff/applicant shall elect whether he will proceed with the suit or application on attaining majority. If he elects to proceed with suit, he shall apply for an order to discharge the next friend and for leave to proceed in his own name. If he wants to abandon the suit, he shall apply for an order to dismiss the suit. Though any such application may be made ex parte, notice shall be given to the next friend. In case, there is more than one plaintiff, and minor co-plaintiff desires to repudiate the suit, he shall apply to Court to strike out his name as co-plaintiff. In such case, the Court shall find that he is not a necessary party. In such application notice shall be served on the next friend, any other co-plaintiff and the defendant also. In case, the minor co-plaintiff, in the opinion of the Court, is a necessary party, it may direct him to be made a defendant to the suit. The minor sole plaintiff having attained age of majority has option to seek the Court to dismiss the suit if it was unreasonable or improper. In that application, notice shall be served on all the parties concerned; and Court before ordering dismissal shall be satisfied with existence of such unreasonableness or impropriety in the suit (Or.32 Rr.12, 13 and 14))

11. Omission to elect by Minor on attaining Majority: After attaining majority, if the minor does not

elect whether to continue suit on his becoming major, suit is not required to be dismissed106. If the minor defendant on obtaining majority did not file petition under Order 32 Rule 12, the question is whether the decree granted in that suit is binding on him. It is answered by the High Court of A.P. that merely because the suit was decreed without taking steps to declare the minor defendant as major and without discharging his guardian, it is not a valid ground to set aside a decree. In the opinion of the High Court, Order 32

Rules 12 and 13 would make it clear that a plaintiff on becoming a major can elect to proceed with or put an end to the litigation. But the defendant has no such choice and the suit must proceed against him notwithstanding the fact that he had attained majority. In the circumstances, the Court observed, if a minor defendant who attained majority did not opt to come on record and contest the suit on his own, he must be deemed to have elected to abide the representation by the guardian and so the judgment and

decree eventually passed in the suit would be binding on him107. For making application under this rule limitation provided by Article 137 of Limitation Act is not applicable and the Court has no discretion to refuse the request made108.

IV Summoning, Production and discovery of documents

1. Procedure of discovery: Generally, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party’s evidence of his case or title. If a party wants inspection of documents in the possession of his opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy how is it possible for him to ask for discovery of specific documents. Order XI Rule 12 therefore provided for ‘discovery of documents.’

Discovery is in two modes. One is discovery by interrogatories and the second is discovery of documents. The main object of interrogatories is to save expenses and time by enabling a party to obtain from the opponent, information as to facts material to the question in dispute between them and to obtain admission of any facts which he has to prove on any issue which is raised between them. An admission of the opponent will serve to maintain the case of the party administering the interrogatory or the answer might be destructive of his own. According to Section 30 CPC the Court may at any time either on its own motion or on the application of any party:

(a) make such order as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts and the discovery inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other object as aforesaid;

(c) Or any fact to be proved by affidavit.

Order 11 Rule 1 contemplates service of interrogatories on the opposite party with the leave of the Court. A conjoint reading of these two provisions make it clear that the Court can at any stage allow service of interrogatories in its discretion. But at the same time, the discretion must be exercised in a judicious way. The information sought to be furnished must have some nexus or relevancy with the dispute in question.

The process of the discovery of documents operates generally in three successive stages, namely (1) the disclosure in writing by one party to the other of all the documents which he has or has had in his possession custody or power relating to matters in question in the proceedings,(2) the inspection of the documents disclosed, other than those for which privilege from or other objection to production is properly claimed or raised; and (3) the production of the documents disclosed either for inspection by the opposite party or to the court

‘Production’ of document and ‘discovery’ are distinct and independent. The party may not apply for both at a time and independently he may ask for each one. But in that case, discovery would precede the production. If the documents are not in power and possession of the party, then no question of production will arise.43

The application for discovery, interrogatory etc have to be moved before the case proceeds for trial. However, in the matter of production under Rule 14, the court can order the same at any stage of the suit or proceeding. It is not to take that Rule 14 of Order XI is not restricted by Rules 12 and 13 as that rule unequivocally states that the Court can direct for production of the documents at any time during the pendency of suit. In passing order Under Rule 14, the court has to form an opinion that the documents are in possession of the party ordered to do so and its production is required to resolve the controversy in the suit. Whereas Rule 12 enables a party to the lis to seek discovery of document from the opposite party before the trial proceeds with, Rule 14 envisages of ‘production’ by order of the court.

The discovery, inspection and production of documents by a party at the request of the opposite party are matters of procedure and it is for this reason the same has been deal with in Order XI Rules 12 to 15 and 21 and Order XVI of the Code. The arbitral tribunal is not powerless to direct production of a document considered to be relevant evidence by it, by one or the other party to the proceedings. This power is statutorily conferred upon the tribunal under Sec. 19 of the Arbitration and Conciliation Act, 1996. That order can be enforced under Sec. 27 (2) (c) (ii) of the Act which is dealing with production of documents specifically. The expression ‘any person’ used in Sec. 27 of the Act means and includes not only the witnesses but also the parties to the proceedings and in the event of the document not being produced as directed by the arbitral tribunal, the tribunal would be entitled to draw an adverse inference against such a party.44

Under Order XI Rule 12 of the Code, a court is required to see before ordering the discovery the following:

(a) the relevancy of the document in the light of the dispute or controversy between the parties; and,

(b) it should seriously apply its mind and satisfy as to whether the documents asked for or sought for to be discovered are required for the purpose of discovery for the effective disposal of the issues in the suit.

43 Minal Anurag Gupta vs Anurag Rameshbhai Gupta, Gujarat High Court, dated 15.2.2016; Source: https://indiankanoon.org/doc/139402686/ 44 Delta Distilleries Ltd vs. United Spirits Ltd., & another (2014) 1 SCC 113=(2013) 13 JT 1=AIR 2014 SC 113=2013 (7) Supreme 97

Where the issues framed by the court do not prima facie call for or warrant the discovery of the documents, mechanically allowing discovery of such documents is not legal.45However, at that stage, the court is precluded from considering the admissibility of the document sought for by way of discovery.46

The Court has power to direct production of document by any party at any time during pendency of suit. But before giving a direction to a party to make discovery of document in his possession, or power or for production of document, the court has to be satisfied that the document in question is relevant for proper adjudication of the matter involved in the suit. The privilege vested in a party to the suit by the provisions under Order XI Rules 12 and 14 is not intended to enable him to cause a roving enquiry to fish out information which may or may not be relevant for the disposal of the suit. 47 The claimant to make discovery has a right to withdraw his claim and such withdrawal will not ensue any prejudice to the other side.48

2. Party can apply without affidavit & no counter is necessary by other side: Unlike in the case of applying for leave to serve interrogatories, in the case of discovery of documents, any party may without filing any affidavit, apply to the court for an order directing any other party to suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein.

It seems that O.11 R12 does not contemplate filing of a counter by the opposite party. Rule 13 speaks that the party, against whom such order under Rule 12 is made, shall specify in the affidavit, as to which of the documents mentioned therein he objects or produce; and it shall be in Form No.5 of Appendix C with such variations and circumstances may require. This rule makes it lucid that only after an order for discovery of document is made, the opposite party has to raise objection by means of affidavit. When the rule provides an application without filing affidavit, to be filed by the party for a direction to make discovery on oath of the documents from opposite party, such application shall be a verified one. Soon after such application is made, the court shall proceed to hear the same and if satisfied that such discovery is not necessary at all, or at that stage of suit, may make order for all or some of the documents in its discretion be thought fit.

3. Object of Discovery: In theory, the object of discovery is (a) to elicit admissions; (b) to obviate the necessity to produce lengthy evidence; and (c) to expedite disposal. In law, the object of interrogatories is twofold. One to know the nature of the case of the opponent; and two, to support his own case either directly by obtaining admissions or indirectly by impeaching or destroying the case of the opponent. It may be true that interrogatories may be administered by any party to a suit to his adversary and they may relate to any matter in issue in the suit. The rules as to discovery by interrogatories may be specified as hereunder.

45 Life Insurance Corporation of India vs. Vasant N. Modi, (2002) 1 GLR 450 (Guj)=(2002) 1 CCC 485=(2002) 1GCD 23 46 Rajkishore Prasad vs. State of Orissa AIR 1979 Ori 96 47 Vysya Bank Ltd., Bangalore vs. B. Seetharamaiah , 1994 (1) APLJ 56 48 Perma Container (UK) Line Ltd., vs. Perma Container Line (Indi) Ltd., Bombay High Court dated 9.5.2014; Source: https://indiankanoon.org/doc/45732896/

(i) Interrogatories may be administered in writing with the leave of the Court and subject to such conditions and limitations as may be prescribed by it; (O.11 R 1)

(ii) The particulars of interrogatories proposed to be delivered should be submitted to the Court, and the Court shall decide it within SEVEN DAYS from the day of filing the said application for leave. (O.11 R 2)

(iii) Interrogatories may be administered either by the plaintiff to the defendant or by the defendant to the plaintiff; by one of the plaintiff to the one or more of the defendants; or by one defendant to another defendant provided there is some question or issue between them in the suit or proceeding.

(iv) No party can deliver more than one set of interrogatories to the same party without an order by the Court. In exceptional cases, a Court may allow more than one set of interrogatories to one and the same party. Court may allow a second set of interrogatories to the same parties, if at a later time certain other points crop up.49

(v) Generally, no leave can be granted to the plaintiff for administering interrogatories until the written statement is filed by the defendant or the time to file written statement has expired. Similarly, no such leave can be granted to the defendant until he files the written statement.

(vi) Where a party to a suit is a corporation or a body of persons empowered to sue or be sued, interrogatories may be administered to an officer or member of such corporation or body.

(vii) Interrogatories and an affidavit in answer to interrogatories should be delivered in the prescribed form. (Form No.2 Appendix C with such variations as circumstances may require). Interrogatories shall be answered by affidavit to be filed within TEN DAYS after the service of the interrogatories or within such period as the Court may allow.

(viii) The interrogatories must relate to or have reasonable nexus with any matter in question in the suit. They must be as to question of fact and not as to conclusions of law, inference of facts or construction of documents.

(ix) Interrogatories which do not relate to any matter in question in the suit should be deemed to be irrelevant. They cannot be allowed at a premature stage.

(x) Interrogatories may be objected inter alia on the ground that they are vexatious, scandalous, irrelevant, unreasonable, not bona fide to the questions raised in the suit, injurious to public interest, fishing in nature or on the ground of privilege or any other ground. (O.11 R 6)

(xi) Interrogatories may be set aside on the ground they have been administered unreasonably or vexatious or struck off on the ground that they are prolix, oppressive, unnecessary or scandalous. An application for that relief may be made within seven days after service of the interrogatories. (O.11 R.7)

49 Kishorilal Babulal vs. Ramlal, AIR 2014 Bom 19=(2013) 6 AllMR 892=(2014) 1 MhLJ 782=(2013) 131 AIC 772

(xii) Generally, the costs of the interrogatories shall be borne by the party administering the interrogatories. But the Court may direct the party at fault to pay the costs of the interrogatories irrespective of the result of the suit. (O.11 R.3)

(xiii) Any party may, at the trial of the suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories. (O.11 R.22)

(xiv) Where any person fails to comply with an order to answer interrogatories his suit can be dismissed if he is plaintiff or his defence can be struck off if he is defendant. (O11 R21)

4. When the Court may refuse discovery of documents: If the Court is of opinion that it is it is not necessary either for fairly disposing of the suit or for saving costs. Or 11 Rule 12 of the Code confers ample discretion on the court to grant or refuse discovery of documents. In exercising discretion, the court will consider the pleadings of the parties, the nature of the suit, the relief or the reliefs sought for, the relevancy of the document for which discovery is prayed, the stage at which such application is made and other relevant circumstances50.

Relevance, justness and expediency to produce documents are germane consideration which weighs with courts, while making orders. Admissibility of documents is not a relevant consideration while deciding whether to direct discovery.51 The obligation to disclose the existence of relevant documents is now coextensive with the obligation to produce documents for inspection. The fact that a document is privileged or otherwise protected from inspection is no reason for not disclosing its existence.52

Instead of making request under Order 11 Rules 12 and 14 C.P.C. for summoning the entire bulky records, the party can prefer to serve interrogatories with regard to the relevant entries in those documents, Without adopting to this convenient procedure when the party makes application for discovery of document under Or 11 Rules 12 and 14 when the recording of oral evidence in the case has commenced is held unjustified. These bulky documents in fact are not required to be summoned in the court, instead specific interrogatory should have been served and can still be served upon the plaintiff for obtaining definite reply to it so that proper defence in the case could be presented or the case taken by the plaintiff could be discredited with its help.53

But the view of the Allahabad High Court in the Deepak Kumar Nayyer case (supra) seems to be not correct. Or 11 Rule 1 provides for discovery by interrogatories; and Rule12 deals with discovery of documents. Both procedures undoubtedly fall within the process of ‘discovery’ under Order 11 but they are distinct and separate. It is not open to the Court to direct the party to choose one or the other of them, for it is up to the party to elect the procedure best suited to his case.

5. Cases where interrogatories may be refused by court:

50 M.L. Sethi vs. R.P. Kapoor AIR 1972 SC 2379 51 Rajesh Bhatia Vs. G. Parimala 2006 (3) ALD 415 52 Rajesh Bhatia (Supra) 53 Deepak Kumar Nayyer Vs. Punjab National Bank & others; dated 28/11/2006 by Justice Umeshwar Pandey; Source: http://www.rishabhdara.com/sc/view.php?case=99902

The following are the cases where interrogatories generally refused by the court:54

(i) A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case or title’

(ii) A party is not entitled to interrogate as to any confidential communications between his opponent and his legal adviser;

(iii) A party is not entitled to execute interrogatories which would involve disclosures injurious to public interest;

Similarly where the Court is of the view that serving of interrogatories would unnecessarily cause delay in the disposal of the trial of the suit; or where the defendant is not appearing and not contesting the suit, the Courts will not permit discover any document or to answer any question on interrogatories.55 Where in an application filed by the wife for medical reimbursement against the husband in a suit for maintenance, if that petition can be disposed of on the basis of affidavit and annexures and they are sufficient to dispose of the said application, collection of additional material by way interrogatories is seldom required.56 Interrogatories may be refused if it is found to be relevant but is incriminating in nature.57Interrogatories are not permissible in interlocutory applications which have to be disposed of by the court in a summary manner.58

6. Scope of Interrogatories – Their relevancy to questions in dispute

The purpose of interrogatories does not form part of Evidence Act but the same has been incorporated in the Civil Procedure Code for certain purpose and object namely, for securing admission and for speedy disposal of the suit and to arrive at a fair adjudication and to minimise the costs of litigation. The interrogatories cannot but be treated as chapters which come as a prelude before unfurling the chapter of the evidence in a suit. This is a stepping stone for opening of the doors of evidence so that the court can have a easy access to get a glimpse about the relevant facts which are beyond the domain of controversy and some controversies may not be germane for the purpose of contentious proposition to be tried in the suit. Therefore, the Court is required to fall back upon in terms of the para-materia known as CPC to interrogatories and which have their nexus with regard to matters in question in the suit.

The procedure under Order XI Rule 1 cannot be treated as an alternate for discharge of burden of proof in a suit by the concerned party. The nature of interrogatories to be delivered by one party and which need to be answered by the other must be such that it does not result in shifting the burden or onus

of proof on the respective issues228. The power of parties to a suit addressing interrogatories is not absolute. The questions shall be confined to facts in issue and to facts probandi (facts constituting the other party’s case) forming part of discovery of facts but not to facts probandia (facts constituting evidence) 229.

54 Ram Pravesh Rai Estate (P) Ltd., vs. Rajesh Kumar Singh @ Munna (2016) 1 BBCJ 50 (Pat) 55 Thakur Prasad vs. Md. Sohayal , AIR 1977 Pat 233=(1977) BBCJ 236 56 Rajesh Burman vs. Mutul Chatterjee (2008) 2 CLJ 59 (Cal) 57 Pradip Kumar Majhi vs. Aloke Kumar Majhi (1999) 2 CalLT 450 (Cal) 58 Savithri vs. Karunya Educational Trust rep. by its Trustee (2011) 2 MWN (Civ) 430 (Mad

It is needless to say that under the pretext of the power under Order 11 Rule 1, it cannot be permitted to have a nomadic or fishing enquiry in respect of matters, which are not relevant for the purpose of the suit. It is also pertinent to note that all questions, which are relevant for cross-examining the witness, may also be relevant for the purpose of interrogatories. On the basis of these principles only, the Court has to examine the proposed interrogatories in the light of pleading and facts of case before granting leave.

Questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to “any matter in

question”. The interrogatories served must have reasonably close connection with matters in question230. The legitimate purpose of interrogatories is to obtain admissions. Hence there can be no dispute about the valuable right of the parties to the suit to serve interrogatories on the opposite party. However a reading of Rules 1 and 2 of Order 11 makes it clear that the leave shall be granted by the Court only to such interrogatories as the Court considers necessary either for disposing of the suit fairly or facing costs. Therefore it is always open to the Court to refuse to grant leave if the interrogatories served have no reasonable connection with the matters in question231.

The relevance of interrogatories, however, is not similar to that of the concept of relevancy of the fact as understood under the Indian Evidence Act. In the classic remarks of A. N. Ray J, in accordance with the general rules as to discovery, interrogatories may not extend to the evidence where, with the opposite party intends to support his case at the trial; or, to the contents of his opponent’s brief or to the names of his witnesses or to the fact which merely support the case of the party interrogated.59 The concept of relevancy stands quantitatively on a different footing from that of the concept of comprehensive of relevancy of fact under the Evidence Act. The relevancy is required to be tested on the touch stone of the matters in question in the suit so that the same sub-serves only the limited object of securing admission to minimise the cost to arrive at a fair adjudication and to bring about a speedy procedure for diminution of the ambit of width of the controversy. The controversy is limited within a comprehensible range, if it can be admitted to be glimpse through the lens of interrogatories. Therefore, interrogatories have a definite role in the CPC as a supplement and have a prelude to Evidence act before the stage of evidence which is proposed to be received at the time of trial. But at the same time, interrogatories shall not be used as a method to fish out the material to prove the case of the party.60

7. Objections to interrogatories and enquiry by court

While the purpose of discovery by interrogatories was to enable a party to the proceeding to obtain certain vital information from the opposite party so as to use such information to advance his case, the opposite party is equally entitled to submit his objection to the interrogatories on the ground that it was not relevant for the purpose of deciding the case as well as on the ground that there was no bonafides in coming with such application.

The discretion of the court to permit a party to serve the interrogatories has to be exercised on the basis of well established legal principles. The court has to consider the nature of the claim in the suit, the necessity shown by the party to invoke the provisions of Order XI Rules 1 and 12 and other relevant

59 Jamaitrai Bishansarup vs. Rai Bahadur Motilal Chamaria AIR 1960 Cal 536 60 P. Kolanda Gounder vs. The State of Tamilnadu represented by its District Collector, Salem & another (2010) 1 MLJ 421=(2009) 5 CTC 314

factors for the purpose of exercising the discretion. The Court shall take care to see that the delivery of interrogatories cannot be made to cause prejudice to the other party. It is also not a short cut method to prove the cases of the party who intends to deliver interrogatories.

The trial court is bound to consider the matter judiciously and to arrive at a conclusion as to whether the applicant should be permitted to deliver interrogatories or to call upon the opposite party to produce the documents as sought for by him. The Court shall also examine the case whether it is falling in one of the circumstances stated in the above paragraph precluding serving of interrogatories. The Court shall consider the pleadings of both the parties to find out the relevancy of interrogatories vis-à-vis the matter in controversy between the parties. Dismissal of the petition with a short order that the suit cannot be decided on the basis of interrogatories only is not sustainable. It shall record specific finding as to the relevancy of interrogatories.61 The court shall also consider, if the suit is at the stage of trial, whether it was absolutely necessary to deliver the interrogatories with the questions as contained in the application.

8. If the answer to interrogatory is not sufficient

As per the scheme of Order XI, interrogatories have to be answered by affidavit and in case of an objection that any answer given is insufficient, said aspect has to be determined by the Court. The provisions of Order XI Rules 10 and 11 indicate steps to be taken by the party interrogating in case there is omission to answer or if the answer is not sufficient. In fact, under Rule 11, the party interrogating has to apply to the Court in that regard. The aforesaid provisions therefore do not indicate that the Court can on its own determine the aspect of insufficiency of an answer in the absence of any grievance in that regard by the person interrogating.62

9. Serving Interrogatories on a non-contesting party to suit

No interrogatories could be issued to any person who was not a party to the suit. This procedure is strictly confined to the parties to the suit. 63 Similarly a plaintiff cannot be permitted to serve interrogatories on those defendants who are supporting him.64It is not permitted also on the defendant who is not contesting the suit who cannot be called ‘opposite’ party.65

Party, who has not chosen to appear in the case and contest the plaintiff’s suit, cannot be asked either to discover any document or to answer any question on interrogatories. A defendant, who remained ex parte in the suit, cannot be regarded as ‘opposite party’ for the purpose of serving interrogatories. If the evidence of that defendant is essential for the plaintiff, he can be summoned as plaintiff’s witness during trial232.

10. Answers to Interrogatories may be used in trial of suit

61 Poonam Mansharamani (Smt.) vs. Ajit Mansharamani (2016) 1 JLJ 140 (MP) 62 Vikas @ Vicky Banwarilal Saraf (Agarwal) vs. Megha Vikas @ Vicky Saraf (2016) 3 MhLJ 58 (Bom) 63 Mohan Singh vs. Karam Singh (2008) 4 PLR 221 (P&H)=(2008) 3 RCR (Civ) 850=(2008) 3 LawHerald 1878 64 Krishna Ayyar vs. Madhava Panikkar AIR 1921 Mad 381 65 Pittala Narsaiah vs. Dontharaboina Janakamma (2007) 6 ALD 7

Any party to the suit may use in evidence, any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the other or the whole of such answer: However, the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last mentioned answers ought not to be used without them, it may direct them to be put in. (Or.11 Rule 22)

Court shall not place sole reliance on the answers to interrogatories because the answers by themselves will not amount to evidence and they are not put in evidence otherwise particularly when the answers to interrogatories do not contain any admission. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it.66

11. Discovery of documents-considerations before Court

Order XI Rule 12 deals with discovery of documents. That provision permits or enables any party to the suit to apply to the Court for suitable directions to the other party to make discovery on oath of the documents which are or to have in the possession of such party. Rule 12 of this Order confers very wide discretion on the court to grant or refuse discovery of documents.

In determining whether a document should be disclosed by a party, two tests should be applied:

(1) Whether it is relevant; and

(2) Whether it is or was in the possession, custody or power of the party or his agent:

In any case when the order directing disclosure has limited discovery or relates to particular documents only the terms of that order must be applied. The trial court may even refuse to direct such discovery, if it is of the view that such discovery is not necessary or not necessary at that stage of the suit; and upon such satisfaction, the learned trial court may by such order, either generally or limited, to certain class of documents, as may, in its discretion thought fit, may direct such discovery. The aspect of "stage" becomes relevant in view of the ingredients of Order XI Rules 12 & 14 CPC that only documents relevant to the necessary stage can be ordered to be produced.

Unlike in the case of applying for leave to serve interrogatories, in the case of discovery of documents, any party may without filing any affidavit, apply to the Court for an order directing any other party to suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein. It seems that Order 11 Rule 12 does not contemplate filing of a counter by the opposite party. Rule 13 speaks that the party, against whom such order under Rule 12 is made, shall specify in the affidavit, as to which of the documents mentioned therein he objects or produce; and it shall be in Form No.5 of Appendix C with such variations and circumstances may require. This rule makes it lucid that only after an order for discovery of document is made, the opposite party has to raise objection by means of affidavit.

When the rule provides an application without filing affidavit, to be filed by the party for a direction to make discovery on oath of the documents from opposite party, such application shall be a verified one. Soon after such application is made, the Court shall proceed to hear the same and if satisfied that such 66 State of Rajasthan vs Meghraj (2000) 4 RLW 5 (Raj)=(2000) 4 WLC 452=(1999) 2 CCC 407

discovery is not necessary at all, or at that stage of suit, may make order for all or some of the documents in its discretion be thought fit. If the Court is of opinion that it is not necessary either for fairly disposing of the suit or for saving costs. Order 11 Rule 12 of the Code confers ample discretion on the Court to grant or refuse discovery of documents. In exercising discretion, the Court will consider the pleadings of the parties, the nature of the suit, the relief or the reliefs sought for, the relevancy of the document for which discovery is prayed, the stage at which such application is made and other relevant circumstances233.

12. Differences between ‘Discovery’ & ‘Production’

The expressions "discovery" and "production" have to be read and construed together and they cannot be read in disjunction to each other, as both these expressions have a reference to the documents in terms of the language of the provisions. The argument that the 'discovery' has to be construed to include discovery by interrogatories, as contemplated under Order XI of the Code and construction would relate to production of documents only, is an argument misconceived in law. The provisions of Order XI relate to 'discovery by interrogatories'. It falls within the realm of evidence and is not dependent i.e. where the plaintiff or defendant, by leave of the court, may deliver interrogatories for examination of other parties. Their purpose is not to require the parties to produce documents, as that would be contrary to the provisions of Order XI, Rule 14 and Order XIII of the Code. There is no common communality in law in these two provisions.67

13. Differences between ‘interrogatories’ and ‘Discovery’:

According to Law Lexicon by P. Ramanatha Aiyer “Interrogatories" are particular questions in writing, demanded of witnesses or parties brought in to be examined in a case. "Discovery" means the act of revealing or disclosing any matter by a defendant in his answer to a suit filed against him in a court of law. To administer to the ends of justice, the Court, in many cases, compel a discovery. The word "interrogatories" has a definite connotation and meaning in law. Discovery by Production of Documents and discovery by Interrogatories are conceptually different and distinct. It may be that the common purpose in inserting these procedural provisions is expeditious disposal of a suit or proceeding. However, when they are distinct in concept and meaning, then, it is not possible to hold that conferment of the discretionary power to seek discovery by production of documents would include by implication a power to administer interrogatories.68

14. Discovery of fact and Discovery of document-Distinction:

If a party seeks assistance of court for causing production of documents by his adversary he may invoke Rules 12, 13, and 14 of Or.11. Without seeking assistance of the court, he may independently issue a notice to his adversary requiring production of documents under R.16 (Form No. 7 of Appendix C). Similarly a party can also issue a notice to his adversary for producing documents for the purpose of eliciting admission under Or.12, R.8.

67 Shri G.S. Rathore vs. The Union of India and others 2007 (5) BomCR 377 (DB)

68 Shri G.S. Rathore (supra)

The distinction between procedural provisions contained in Or.11 CPC and Rules of evidence contained in Sections 162 to 165 are like this. The rules of procedure envisaged under Or 11 of the Code and rules of evidence contained in Chapter 1o of the Evidence Act may appear to be equivalent in certain areas, but they operate in different spheres. The purpose or object behind these provisions would clearly tell that former rules are meant to shorten litigation at the initial stage before trial and latter rules of evidence are meant to discover truth at the stage of trial or giving evidence. It is always open to the court wherever necessary when factual situation demands, to draw necessary adverse inference for non-production of documents relevant to matter in controversy, irrespective of the fact that burden is upon a particular party in whose custody documents are in existence and there is no need to discover documents69.

15. Resistance to Discovery & Production

Discovery and production of documents may successfully be opposed on one or more of the under noted grounds:70

(i) Documents within the legal or professional privilege;

(ii) Documents tending to incriminate a party or expose him to forfeiture;

(iii) Documents protected by public policy or production whereof is injurious to public interest;

(iv) Documents not in the sole possession of the party giving discovery;

(v) Documents relating solely to the case of the party giving discovery;

(vi) Documents in the possession of the party as an agent or a representative of another;

(vii) Documents disclosing evidence. (This may not be exhaustive list)

16. Production of Documents

An order for production of documents covered by Rule 14 is not the same as an order for discovery of documents covered by Rule 12 or an order for inspection of document under Rule 18. Order for discovery of documents under Rule 12 is an independent order by itself. Rule 14 of Order 11 provides that the Court, at any time during the pendency of any suit, can lawfully order the production by any party to suit, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit as the Court shall think right; and the Court may deal with such documents when produced in such manner as shall appear just. Here, none of the parties is required to make application to the Court to invoke the power under Rule 14; and so, the Court can suo motu exercise the power and that is the reason why the Rule 14 is worded that it shall be lawful to the Court to give such direction.

17. Scope of enquiry under Rule 14

69 Rajesh Bhatia vs. G. Parimala 2006 (3) ALD 415 (AP) 70 Jamamuddin vs. Shri Ram Chits Pvtr Ltd., rep by its Foreman/Manager, Yemmiganur Village and Mandal, Kurnool District (2009) 5 ALT 177=(2009) 4 ALD 851

Under Order XI R 12, 13, 14 read with Section 151 CPC the applicant cannot be allowed to make fishing and roving enquiry. Though no fishing enquiry can be allowed, however, under Order XI R 14 CPC the Court has the power to direct production of the document by any party at any time during the pendency of the suit, but before giving a direction to a party to make discovery of document in his possession or power or for production of documents, the Court has to be satisfied that the document in question is relevant for the proper adjudication of the matter involved in the suit. Parties seeking discovery or production of document need not satisfy the court that the document in question is admissible as evidence in the suit, it would be sufficient to show that the contents of the document would throw light on the subject matter of the suit.71

The exercise of power under Rule 14 is subject to condition precedent, namely, the party who is to be ordered to produce document must be in possession or power of the document. When a person denies the allegation that he is in custody of the document the same by itself may not in a given case divest the jurisdiction of the trial Court under Rule 14. So it is correct to contend that the Court has to conduct a prima facie enquiry and arrive at a finding as to whether a party is in possession of the document. It is reasonable to presume that as and when a party is directed to produce a document and such document goes against the case projected or pleaded in the case, by reason of natural human conduct everyone denies the custody of the document. The condition precedent for ordering production of document is

inquiry with reference to pleadings and the evidence, if any let in before the trial Court234. The question whether the party who is to be ordered production of document is in possession of document in fact can be inquired into by the Court with reference to pleadings and evidence if any lead.72

Parties seeking discovery or production of document need not satisfy the court that the document in question is admissible as evidence in the suit. It would be sufficient to show that the contents of the document would throw light on the subject matter of the suit.73

18. Order under Rule 14 is not interim measure

In a suit for recovery of money basing on a pronote executed by defendant towards loan obtained by him to purchase car, the application of plaintiff under Order 11 Rule 14/15 is allowed by trial Court directing the defendant to handover the RC Book of the car, to the plaintiff. It is held that even if the suit is filed for recovery of possession of the car, question of directing delivery of document would not have arisen unless suit is decreed. Giving such direction as interim measure in a suit for money is outside its contemplation of Rule 14235.

19. Applicability of Rule 14 in M.V. Act Claims

Where there is a dispute regarding the question as to with which insurance company the vehicle in question was covered the petitioner as a party to the claim petition has a right to seek order of the Tribunal under Order 11 Rule 14 to direct another party to produce necessary document for fastening the liability on the insurance company236.

71 J.S. Construction Pvt. Ltd. vs. Damodar Rout AIR 1987 Orissa 207 72 P. Meharunnissa Begum vs. P. Noorunnissa Begum (2002) 3 ALT 12=(2002) 4 RCR (Civ) 117=(2001) 3 LS 213 73 J.S. Construction Pvt. Ltd. vs. Damodar Rout AIR 1987 Orissa 207

20. Discovery of fact and Discovery of document-Distinction

If a party seeks assistance of Court for causing production of documents by his adversary he may invoke Rules 12, 13, and 14 of Order 11. Without seeking assistance of the Court, he may independently issue a notice to his adversary requiring production of documents under Rule 16 (Form No.7 of Appendix C). Similarly a party can also issue a notice to his adversary for producing documents for the purpose of eliciting admission under Order 12, Rule 8. The distinction between procedural provisions contained in Order 11 CPC and rules of evidence contained in Sections 162 to 165 are like this. The rules of procedure envisaged under Order 11 of the Code and rules of evidence contained in Chapter 10 of the Evidence Act may appear to be equivalent in certain areas, but they operate in different spheres.

The purpose or object behind these provisions would clearly tell us that former rules are meant to shorten litigation at the initial stage before trial and latter rules of evidence are meant to discover truth at the stage of trial or giving evidence. It is always open to the Court wherever necessary when factual situation demands, to draw necessary adverse inference for non-production of documents relevant to matter in controversy, irrespective of the fact that burden is upon a particular party in whose custody documents are in existence and there is no need to discover documents237.

21. Inspection of Documents

Order 11 Rule 15 provides that every party to a suit shall be entitled to give notice to any other party to produce such document referred in his pleadings or entered in the list of documents annexed to his pleading, for the inspection by the party giving notice, or by his advocate and to permit him to take copies thereof. If the other party did not comply with such notice, he shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he satisfies the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice. In such case the Court may allow the same to be put in evidence on such terms as to costs. The Rule mentions that the right of the party under Rule 15 shall be exercised at or before the settlement of issues. But the Supreme

Court is of opinion that it is only directory238. The notice to produce document under Rule 15 shall be in Form No.7 Appendix C.

Rules 117 to 124 of Civil Rules of Practice may also be referred for procedure relating to inspection of documents by party/pleader or stranger to suit and obtaining copies of documents and the fee for obtaining copies.

22. Procedure on Notice under Rule 15

From a plain reading of the Rule 15, it is clear that all that is required for a request for inspection is that the document may come under reference in the pleadings or affidavits or it should be included in any list annexed to the pleadings. In this context it may be useful to read Order VII Rule 14 of the Code which prescribes that where a plaintiff sues upon a document in his possession or power, he shall at the same time deliver the document or a copy thereof to be filed with the plaint. Sub rule (2) of Order VII provides for ‘list of other documents’ which the plaintiff relies as evidence in support of his claim and he shall enter such documents in a list annexed to the plaint. One learned single judge of Patna High Court reading

these provisions together observed that the document mentioned in Order VII Rule 14 cannot be said to be a document referred to in the pleading or affidavits within the meaning of Order XI Rule 15. 74 According to the learned Judge’s view, the privilege of inspection by a party of the documents of his adversary is not a matter of routine but can be allowed only on judicial consideration granting of inspection prior to the filing of the written statement in such cases may result in fishing out false and frivolous pleas of defence by a defendant. This reasoning is not logically correct. If the document is so important as to form the foundation of the suit or in the other words where a plaintiff sues upon a particular document, the law requires that the document or a copy thereof must be delivered to be filed with the plaint. The intent is plainly that the defendant, who has to resist the suit, must get an opportunity to examine the document before responding to plaintiff’s claim.

The difference in the two categories of documents as mentioned in Order VII Rule 14 (1) and (2) is that in regard to the documents of the first category which form the very foundation of the suit, the defendant must be afforded an opportunity to see them even without his specially asking for it before he is required to file a written statement. As regards the documents of the other category, where the documents are relied on as evidence in support of the party’s claim, it is up to the defendant to have an inspection of them by making a specific prayer for the inspection. In that view of the matter, Order XI Rule 15 is quite independent and is in no way connected to, controlled or circumscribed by the provision of Order VII Rule 14 CPC.75

Within 10 days of such notice, the party to whom the notice is served, shall deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, bank (if it is a Bankers’ Book). Such notice shall be in Form No.8, Appendix C. (Order 11 Rule 17) If the party served with notice under Rule 15 omits to give notice under Rule 17, or offers inspection elsewhere than at the office of his pleader, the Court may on the application of the party desiring it, make order for inspection at such place and in such manner as it may think fit. But the Court shall not pass such order when it is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. If once the Court comes to a conclusion that the documents are necessary for a fair trial, it is mandatory for the Court to direct the party in whose possession the records are, to cause production for inspection; in case where the party claims that he is not in possession of the records which were found to be necessary for fair disposal of the suit and the Court, if in doubt of such an assertion, the remedy is available in Order 11 Rule 19(3) and the procedure there under has to be followed239.

Filing written statement is not a condition precedent for the defendant to invoke the procedure under Rule 15 of Order XI. The rule does not specify any period of time within which an inspection can be asked by a party. On the contrary, the Rules proves that such an inspection can be asked for by a party at any time. Under Rule 15 of Order XI in a suit for eviction by a person claiming to be the purchaser from the original landlord, the tenant has right to call for the original document of sale on which the plaintiff’s title to the suit property is sought to be founded.76

74 Birendra Kumar Gupta vs. Smt. Chinta Devi AIR 1974 Pat 287=(1974) BBCJ 176 75 Madan Prasad Gupta @ Madan Prasad vs. Ram Narain Prasad (1993) BBCJ 52 (Pat) (DB)=(1993) 1 PLR 477 76 Ashoke Banerjea vs. Sulochana Devi (1990) BBCJ 601 (Pat)=(1990) 2 PLJR 658=(1991) BLJR 97

23. Striking off defence under Section 151 CPC

If the order under Rule 14 has not complied with by the party the Court struck off his defence under Section 151 CPC, as in its opinion, Rule 21 is not applicable to such case. The Court held that in view of the express provision in Order 11 Rule 21, there could not be any scope for the exercise of inherent jurisdiction to make an order under Section 151, striking out the defence. It is observed that by mere using the expression “inherent jurisdiction”, a Court cannot justify an order which is otherwise not justified240.

24. Penal consequences under Order 11 Rule 21

For the failure of the party to comply with any order to answer interrogatories (Rule 1), or for discovery (Rule 12) or inspection (Rule 14) of documents, the party making such application for leave to serve interrogatories, order of discovery or serve notice for production of documents for inspection, as the case may be, may apply to the Court for an order to struck off the defence or dismiss the suit, depending on the status of other party who failed to comply with, either as plaintiff or defendant. But no such order shall be passed by the Court without giving him a reasonable opportunity. The power under Rule 21 shall be strictly applied to the failure of reporting compliance with orders under Rules 1, 12, and 14 only and nothing more. If a notice is given by the party under Section 66 Evidence Act, for causing production of certain document from the plaintiff, and when the plaintiff is consistently contending that no such document is available with him, the Court cannot dismiss his suit under Rule 21, obviously because, Section 66 of Evidence Act is not covered by the procedure under Rule 21 of Order 11241.

Even assuming that in certain circumstances, the provisions of Order 11 Rule 21 must be strictly enforced, it does not follow that a suit can be flippantly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and therefore, an order for dismissal ought not to be made under Order 11 Rule 21, unless the Court is satisfied that the plaintiff was willfully withholding information refusing to answer interrogatories or by withholding the documents which he ought to discover. In such an event the plaintiff must obtain the consequence of having his claim dismissed due to his default, i.e., by suppression of information which he was bound to furnish. In the case of defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order 11 Rule 21 should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party. The rigid provisions of Order 11 Rule 21 should be applied only in extreme cases, where there is tenacity or contumacy on the part of the defendant or a willful attempt to disregard the order of the Court is established242.

Dismissal under Rule 21(1) precludes the plaintiff from bringing a fresh suit on the same cause of action, as per Rule 21(2).

Striking out defence is an extreme step and it is a last resort to compel the defendant to comply with the direction of the court for discovery of document or for interrogatories. The Court shall satisfy that there is either willful neglect or otherwise the defendant is guilty of contumacious conduct. When no application was made to the court for discovery of document, merely because a notice was served on the

opposite party to cause production of certain documents and when the opposite party did not respond to that notice, it is not open to the court to strike out the pleadings of the defendant.77

25. Striking off defence – The three stages

There are three stages provided by law regarding interrogatories. In the first stage, plaintiff or defendant has to obtain leave of Court and after obtaining leave interrogatories are to be served on the person who is required to answer by affidavit. In second stage, if person on whom interrogatories are served has not answered, the party who obtained leave has to again file another application under Order 11 Rule 11 when person omits to answer interrogatories. At that stage Court can compel person to answer interrogatories by passing order and if such order is not complied with, then only Court can dismiss suit or struck off defence as the case may be as provided under Order 11 Rule 21243.

26. Striking off defence for non-compliance of order under Rule 14

Rule 14 did not contemplate any penal consequences mentioned under Rule 21; unlike failure of the party to obey the order of Court under Rule 1 (Interrogatories) or Rule 18 (order for inspection of documents). Rule 14 contemplates an independent order by itself and Rule 21 does not empower the Court to strike off defence for non-compliance with an order Rule 14. Rule 21 provides for penalties in specific cases and not a case falling under Rule 14. If an order made under Rule 14 is not complied with, the Court will be entitled to draw an adverse inference against the party refusing to do so and also take that fact into consideration while dealing with the merits of the suit. But it does not appear to have been empowered to strike off the defence under Rule 21244.

V. Summoning of witnesses

1. Summoning of witnesses

The procedure for service of summonses on the defendant laid down by Sections 27, 28 and 29 is also applicable for service of summonses on the witness to give evidence or to produce documents or other material objects (Sec.31).

The parties to a suit have two options for ensuring presence of witnesses. One is, they can themselves ensure the presence of the witness and the court can certainly record the evidence of such witnesses. Two, if the party is not able to secure the presence of the witness he may seek assistance of the court to summon the witness. In such cases, summon may be issued by the court on being satisfied that the evidence of such witness is relevant and necessary. The procedure for service of summon to defendants in a suit is the same for summoning the witnesses also as under sec. 31 of the Code.

Not only in the proceedings pending before a civil court, there are other forums or tribunals which are authorized by law to seek assistance of civil court for ensuring attendance of witnesses. For example, under Sec. 27 of Arbitration and Conciliation Act, 1996, the arbitral tribunal or a party with the approval

77 M/s Babbar Sewing Machine Co vs. Tirlok Nath Mahajan AIR 1978 SC 1436=(1979) 1 SCR 57=(1978) 4 SCC 188=(1978) BBCJ (SC) 97=(1978) UJ 559; Sharadamma vs. Sharad G. Jadav (2005) ILR (Kar) 5048=(2005) 4 KCCR 2492=AIR 2005 Kar 445=(2005) 4 KLO 2605=(2005) 6 KarLJ 284

of such tribunal may apply to a civil court for assistance in taking evidence. For that the requirement is that the party should apply to the Court specifying the names and addresses of the parties and the Arbitrators; the general nature of the claim and the relief sought, the evidence to be obtained in particular, referring to the names and addresses of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required and description of the documents to be produced or the property to be inspected. Thereupon the civil court will execute the required by ordering that the evidence be provided directly to the arbitral tribunal. The Court may, while making anorders, issue the process to witness as it may issue in suits.

The Court’s assistance in taking evidence is restricted only to the extent of giving direction to the parties to produce the documents or issue summons to witness. Except that the procedure does not contemplate whereby the court should give hearing to the witness or a party against whom the Court want to issue directions to produce record to issue summons for witness.78 If the document sought to be summoned under Order XVI Rule 1 is irrelevant in the opinion of the Court, it may refuse issuing of summons. 79 If the Court is satisfied about irrelevancy of the evidence sought to be adduced by summoning witness, the court will exercise discretion in refusing that relief. Belated attempts of the parties to make application to summon the witnesses shall be discouraged.80

When essential facts are not pleaded, occasion to adduce evidence on those facts does not arise. Therefore, the Court has to examine when an application under Rule 1 of Order XVI is made to summon a witness to prove a fact, whether that fact is pleaded or not. Otherwise, summoning such witness will be a futile exercise.81 But there are cases where the Court shall not restrict the parties to let in the evidence to the issues only. for example, in a suit for cancellation of decree on ground of fraud, the plaintiff has to prove certain facts which will prove the factum of fraud, like fraud in service of summons in the suit and notice in execution petition and fraud played in bringing documents into existence on the basis of which fraudulent exparte decree was obtained. These facts are relating to evidence and the rule is that evidence need not be pleaded. Therefore, if the plea of fraud is specifically pleaded, the Court has to allow the plaintiff to summon the witnesses in relation to the above facts.82

In suits between two private individuals relating to property, the Court shall not ordinarily summon public servants to support the cause of one party unless the Court itself is of the opinion that the evidence of such public servant is required to adjudicate on the seriously disputed questions arising in the suit.83When the head of the Institutions have delegated powers to the local officials who are more aware of the facts in issue in a given case, the trial court should not call the head of institution to give evidence instead of proper local officers.84

Where the order of referring the disputed signature to the handwriting expert on the negotiable instrument with the signature obtained after six years of the signing in the court is illegal, summoning of 78 Rasiklal Ratilal vs. Fancy Corporation (2007) 4 ArbLR 173 (Bom)=(2007) 3 BomCR 603=(2007) 3 AllMR 801 79 Calcutta Stock Exchange vs. BLB Limited 2016 (1) ALD 185 (SC)=(2016) 3 CompLJ 122 (SC)=(2016) 155 DRJ 1469=(2016) 133 SCL 357 (SC)=2015 (13) Scale 602=2015 (4) WLN 214 (SC) 80 Thimmaraju Shyama Sunder Rao vs. Thimmaraju Jittender Rao (2007) 4 ALD 20=(2007) 3 ALT 378=(2007) 1 LS 329 81 V. Rajeshwar vs. N. Gurucharanam (2007) 1 ALD 154=(2007) 1 ALT 652=(2006) 3 LS 247 82 P. Ramalaxmi vs. Peetala Tatayya (2006) 1 ALD 577=(2006) 1 ALT 79=(2005) 3 LS 351 83 Shaik Ujauddin vs. Veerabhadra Uma Devi (2013 (1) ALD 207=2012 (6) ALT 636 84 Greater Hyderabad Municipal Corp rep. by its Commissioner vs. M. Ramakrishna (2012) 5 ALT 201

the expert would perpetuate the illegality and therefore dismissal of application for summons is appropriate.85

At any rate, the Court has got discretionary power in the matter of number of witnesses to be allowed to be examined with a view to control the proceedings.86 Without doubt, this power has to be exercised by looking into the facts of the case, facts proposed to be proved, their relevancy etc. When such application to summon witness or documents is filed only to prolong the litigation and the party after having procured the affidavits of the witness and then filed petition for summoning them, rejection of such application is sustainable.87The provisions of Order XVI Rule 1 are, however, required to be construed liberally and the evidence should not be normally shut unless the conduct of the parties is grossly negligent and there are serious latches on its part. Wrong and unwarranted exercise of discretion gives rise to avoidable litigation and prolongation in litigation.

In every case when an application is made in terms of Order XVI Rule 1, the Court has to apply its mind and restrict the number of witnesses to an extent which could cater to the requirement of the case. The approach of the Court should be to neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the parties producing the witnesses. Therefore the Court shall examine – nature of litigation, number of issues required to be proved, nature of the issues, the fact as to on whom the onus has been laid and the specified purpose for which a particular witness is required to be produced.88

2. Production of witness without summons:

Order XVI Rules 1 and 1A if read together, it would clearly indicate that it is open to a party to summon a witness to the court; or even may, without applying for summons, bring a witness to give evidence or to produce documents. The Court has no power to decline to examine the witnesses produced by the party nor could it refuse to take the documents on record through the witness.89 A witness produced under rule 1A is entitled to produce document and it is not necessary that the copy of that document should have filed by the party into court.90 Since rule 1A is subject to the provisions of Sub rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for the purpose, the leave of the Court may be necessary. Bit that would not mean that rule 1A was in derogation to sub-rule (3) of Rule 1. Such document brought by the witness can be taken on record and it is not necessary that the plaintiff must have filed on record the copies of the said document earlier.

If the witness was produced by the party on his own under Rule 1A of Order XVI, examination –in-chief is not to be recorded in court but it shall be in the form of affidavit.91But when the Court has issued

85 M. Satyanarayana vs. P. Indira Devi 2011 (2) ALD 310=2011 (1) ALT 646 86 Sundar Mahto vs. Sumitra Devi (2014) 2 BBCJ 298 (Pat)=(2014) 1 PLJR 635 87 Nandita Chaudhary vs. Surat Singh Rao (2010) 167 DLT 487 (Del)=(2011) 7 RCR (Civ) 1110 88 Dhanalakshmi vs. N. Malliga (2014) 3 MLJ 45 (Mad): Sethurajan vs. Rajalakshmi rep by her Power Agent V. Ramadass (2012) 5 LW 167 89 Ashok Sharma vs. Ram Adhar Sharma (2009) 11 SCC 47=(2009) 2 RCR (Civ) 503=(2010) 1 JCR (SC) 221 90 Ashok Sharma (Supra) 91 Salem Advocate Bar Association, Tamil Nadu vs. Union of India(2003) 1 SCC 49=AIR 2003 SC 189=(2002) AIR (SCW) 4627=(2002) 8 Scale 146=(2002) 8 Supreme 55=(2003) 1 BBCJ (SC) 65=(2002) 8 Scale 146=(2002) 9 JT 175=(2002) 4 RCR (Civ) 786=(2003) 1 UJ 1=(2003) 1 PLR (SC) 337=(2003) 1 CivCC 198

summons under Rule 1, the court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in court for his examination.92

3. List of witness and summons to witness

Order XVI Rule 1 CPC provides:

(1) On or before such date as the Court may appoint and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recoded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witness under sub-rule (1).

Order XVI Rules 1 and 1A speaks of list of witness and states further that the omission thereof precludes the party to avail the assistance of the Court to secure their attendant to give evidence or to produce documents on their behalf. Rule 1A is added to see that undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. There is no total prohibition on the party to produce the witnesses or the production of the documents if the list of witnesses is not filed within the time. When they seek the assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the prescribed time under Rule 1. It has to be explained why the list of the witness along with the documents was not filed earlier. If the explanation is satisfactory, there cannot be any hurdle for the court to receive the list for summoning the witnesses.93

Where the witnesses were examined in an election petition, but the trial court did not consider their evidence on the ground that their names are not disclosed at the earliest available opportunity, the Supreme Court found that there was no incorrectness in the appreciation of evidence but it did not say whether the evidence cannot be given any weight if the witnesses are not shown in the list of witnesses.94 But in Vidhyadhar, the Supreme Court has clearly laid down that where a witness whose name was not mentioned in the list of witnesses was examined, it was not open to any criticism on the ground that he was produced as a witness without being summoned through the court and without his name being

92 Salem Advocate Bar Association (Supra) 93 Lalitha J. Rai vs. Aithappa Rai (1995) 4 SCC 244=AIR 1995 SC 1984=(1995) AIR (SCW) 3106=(1995) 3 SCJ 56=(1995) 3 Scale 698=(1995) 2 UJ 409=(1995) 3 PLR (SC) 273=(1995) 2 CivCC 685 94 Thakur Sen Negi vs. Dev Raj Negi AIR 1994 SC 2526=(1993) Supp3 SCC 645=(1994) AIR (SCW) 3566=(1993) 2 Scale 738=(1993) 3 JT 189=(1993) 2 UJ 51

mentioned in the list of witnesses.95The Andhra Pradesh High Court has taken a consistent view that filing of the list of witnesses within 15 days of the framing of the issues is not mandatory.96 The requirement is that the party has to seek leave of the court to examine the witness whose name was not shown in the list of witnesses.97

Therefore, even though Order 16 Rule 1 (1) of the Code requires the parties to present the list of witnesses within 15 days after framing of issues, sub-rule (3) thereof vests the court with the discretionary powers to permit a party to make good any omission therein even after expiry of that period upon sufficient cause be shown. Further, under Rule 1A, the party is at liberty to produce the witness on his own notwithstanding the fact that his name does not find place in the list of witnesses.

4. Chief Examination affidavit filed – No summon to witness for cross-examination

To a witness of the party whose affidavit in lieu of chief examination was produced, but his presence could not be obtained by the party for cross-examination, summons cannot be ordered.98

5. Application to summon an irrelevant witness at belated stage – not to be permitted

Normally procedural technicalities should not defeat substantial justice and liberal approach has to be adopted to do substantial justice. Permitting of admissible evidence is general rule. In a suit for damages, a witness summons was sought for to speak on the aspect of partition but the said application was moved at a belated stage, that too, for a purpose which may not help either of parties. When the Court is satisfied about irrelevancy of evidence sought to be adduced by summoning witness, Court will definitely exercise discretion to refuse such relief prayed for.99

6. Evidence of witness on facts not pleaded – refused

Trial Court dismissed application filed by defendant to summon witness along with records on the grounds not supported by pleading and that two reliefs being prayed in application also cannot be maintained. It is held, normally all essential facts are to be pleaded; and when an essential fact is not pleaded, question of letting in any evidence in relation to such plea is impermissible. When there are no pleadings, party shall not to be permitted to let in evidence to that extent and thus application shall be held not bona fide. Further, since two reliefs are being prayed for in a single application, relief has to be declined on that ground also258.

7. Witness summoned – unmarked documents to be returned to him

95 Vidhyadhar vs. Manikrao and another (1999) 3 SCC 573=(1999) 1 SCR 1168=AIR 1999 SC 1441=(1999) 2 JT 183=(1999) 3 LW 576=(1999) 2 Scale 93=(1999) 1 UJ 665(1999) 3 BomCR 564 (SC)= 1999 (3) ALT 1(SC) 96 Kusetty Seshamma vs. Chemicala Rama Mohan Reddy (2011) 5 ALD 434 97 M. M. Corporation vs. Juhu Vile Parle Development (2011) 7 RCR (Cri) 108 (Bom)=(2010) 4 MhLJ 931=(2010) 4 CivCC 221 98 Chukka Ramaiah vs. Cheruku Bujjaiah (2010) 5 ALD 72; Salem Advocate Bar Association, Tamil Nadu vs. Union of India(2003) 1 SCC 49=AIR 2003 SC 189=(2002) AIR (SCW) 4627=(2002) 8 Scale 146=(2002) 8 Supreme 55=(2003) 1 BBCJ (SC) 65=(2002) 8 Scale 146=(2002) 9 JT 175=(2002) 4 RCR (Civ) 786=(2003) 1 UJ 1=(2003) 1 PLR (SC) 337=(2003) 1 CivCC 198 99 Thimmaraju Shyama Sunder Rao vs. Thimmaraju Jitender Rao 2007 (4) ALD 20

When the Court issued summon to any witness to take his evidence or to produce records; and where the witness is summoned to produce only records or documents; and if some of the documents are not marked by the party summoning the witness to produce records, it would cause any amount of prejudice if the documents which are not admitted in evidence, are not returned immediately to the person who produced such documents. In such a case, whether the party is likely to use the retuned document as a security to raise the loan or is likely to part with the subject-matter of the document, are irrelevant while considering an application under Order XIII Rule 7(2) CPC. As per Rule 9 of Order XIII, only those documents which are admitted and marked as evidence, cannot be returned till the disposal of the suit259.

Where the order of referring the disputed signature to the handwriting expert on the promissory note with the signature obtained after six years of the signing in the Court itself is illegal, further summoning of the expert appointed would be perpetuation of illegality and therefore application for such summons has to be rejected260.

8. Issue of summons - Court has extensive jurisdiction to cater to different situations

Rule 1 of Order 16 contemplates that the parties shall present in Court a list of witnesses. Sub-rules (2) and (3) provide that a party desirous of obtaining any summon for the attendance of any person, whom he omitted to mention in the list contemplated under sub-rule (1), shall file an application for the said purpose by showing sufficient cause and the Court for reasons to be recorded, permit a party to call such witness. Therefore, it could be seen that discretion is granted under sub-rule (3) of Rule 1 to the Court, for the reasons to be recorded, to summon the witnesses whose names are omitted in the earlier list for the sufficient cause shown by the party.

In a given case, the 1st respondent has produced certain documents and further, during enquiry he produced some more documents and they were all marked. His case is that those documents have to be proved by examining the authorities who issued them as it is necessary to prove his case in the election petition. The Apex Court in the decision reported in an election petition, though in a different situation, while considering the alleged contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order 16 held that Order 16 Rule 1(3) confers wider jurisdiction on the Court to cater to different

situations261. In the present case, though the ‘sufficient cause’ for omission of the names of the witnesses in the list contemplated under sub-rule (1) of Rule 1 of Order 16 is obscure, since the discretion is granted to the Court, in the light of the above facts and circumstances and considering the main relief sought for by the 1st respondent and to have a comprehensive adjudication and to do complete justice, it was held that the Court below has rightly exercised its discretionary jurisdiction262.

9. Party has no right to seek summon to witness without showing him in the list of witness/filing petition seeking permission

The defendants want to summon a witness shown by the plaintiff as his witness in the list of witness but failed to examine that person though he was present in the Court, and so the defendant-revision petitioner was to examine that person as a witness on his behalf and so, even if he did not file a list of witness, he can seek summons to that person as a witness on his behalf. The High Court did not find force in that contention. It is said that, failure of a party to examine a witness summoned by him, though he is present in Court, would not automatically clothe the other side with a right to seek his being summoned as

their witness, even though he is not cited as a witness on their behalf in the list of witnesses filed by them. In fact the defendants did not file list of witness as contemplated by Rule 1(1) of Order 16 and no reasons are mentioned in the affidavit as to why they failed to file a list of witnesses. On their behalf mentioning the name of the person, they intend to summon as witnesses on their behalf. It is clear that no party to the suit can as of right seek issuance of summons by the Court to a person who is not shown in the list of witnesses filed by him. The High Court while dismissing the revision, directed the defendant-revision petitioner to file a petition seeking permission of the Court to receive list of witness and till such permission is given by the Court, the party to the suit cannot without complying the Rule 1(3) of Order 16 seek summons being issued to persons who are not shown in the list of witnesses filed by them263.

10. Petition to summon witness at the time of arguments – Reasons necessary for dismissal

Whenever the party to a suit files a petition under Order 16 Rule 1(1) to issue summons to a witness, at the time when the matter is posted for arguments of the other party, the Court, if it is of opinion that it is belated and not a bona fide one, can dismiss it in the light of reasons recorded and not without a speaking order264.

11. Summons to an official to produce some records before framing of issues

A petition under Order 16 Rule 1 read with Section 151 CPC was filed seeking to summon the Mandal Revenue Officer to produce some records pertaining to the suit schedule property during enquiry into petition under Order 39 Rules 1 CPC. By that time issues are yet to be settled. It is urged that Adangals, relied upon by the defendants were obtained fraudulently. It is contended that Order 16 Rule 1 or Order 14 Rule 4 may not really be applicable because the stages prescribed in those two provisions did not, indeed reach yet. At times, technicalities have no place in the adjudicatory process. As already pointed out, there is no provision covering the present controversial and factual situation. In such an event, it is for the Court below to invoke its inherent jurisdiction conferred under Section 151 CPC in order to meet the ends of justice or to prevent the abuse of process of law265.

12. Summons to witness to compel him to disclose about his vote - can be issued

The voting was held by using electronic voting machine. In the election petition, the petitioner challenging the election not only alleged misalignment of the machine, but also asserted that, whereas both the parties polled nil votes from a particular booth, independent candidate was polled a high number of votes. Prayer is made for issuance of summons to some witness who had allegedly agreed to give evidence on that aspect. It is contended that any summons taken out to compel a witness to depose before the Court to disclose as to in whose favour he had cast his vote would be invalid and no summons can be issued. The question before the Supreme Court was, whether the Courts can be asked to issue summons to witness under Order XVI Rule 1(2) CPC to disclose such a fact? The Court answered this question that secrecy of ballots indisputably goes to the root of democracy, but the same may not itself be a ground to refuse issue of summons to the witness. Section 94 of Representation of Peoples’ Act confers merely a privilege upon a voter. He may even waive his right. It is not in dispute that any person can be produced as a witness by the parties to an election petition. Witnesses so produced on behalf of the parties without any summons being issued would be at liberty to disclose in the Court as to in whose favour he had

exercised his right of franchise. It is therefore evident that the question as to whether a witness will exercise his right/privilege conferred in terms of Section 94 of the Act is a matter of volition. It is one thing to say that the civil Court while issuing a summon must exercise its jurisdiction in terms of sub-rule (2) of Rule 1 of Order XVI but it is another thing to say that the Court would refuse to summon the witness only because a question as regards exercise of the privilege of the witness may arise. The Court may not refuse to exercise its jurisdiction only on the ground that by reason thereof the privilege of a voter may be violated266.

13. List of witness not filed – whether Application to summon witness can be dismissed?

Trial Court passed order dismissing application filed by defendant for summoning witnesses on the ground that list of witnesses was not filed. The High Court of A.P. did not accept this proposition and interfered with that order in the Revision. The reasoning of the Court is that it is one of cardinal principles of rules of natural justice that full opportunity should be afforded to parties to produce their evidence and state their case before Court and the Court ought to exercise in favour of production of evidence. No doubt where a party is playing dilatory tactics and tries to halt proceedings by seeking adjournment to produce witnesses whose evidence is not relevant, Court is well within its power to refuse production of such evidence. Unless statutory infraction is imperative, procedural technicalities shall not defeat substantial justice. Permitting to let in of all admissible evidence is general rule, rejecting thereof under specified circumstances to be an exception always. Liberal approach to lean in favour of doing substantial justice despite procedural technicalities may be highly essential in several of cases, lest very justice delivery system will suffer in its working to the detriment of litigant public. In view of the above reasoning, dismissal of application to summon the witness on the mere ground of not filing of list of witness is held unsustainable.100

14. One of the parties summoning the other party as witness – can be summoned as Court witness only

In a suit for recovery of money, except the first defendant, other defendants did not depose as witnesses though they have filed written statement. The fist defendant filed application to summon other defendants as witness. The trial Court dismissed that petition. The High Court held that a party to suit can be forced to depose as witness at the instance of another party only as Court Witness for definite and specific purpose and such persons cannot be compelled to take sides of any of the parties, contrary to their wish. 101

But Karnataka High Court has taken a different view. While referring to certain earlier decisions, the High Court said that the Court is not powerless in summoning the opposite party, if there are suitable reasons. If the Court comes to the conclusion that the application of the particular party calling for the opposite party as the witness is an abuse of process of Court, such application needs to be disallowed. While laying down the proposition that one party to the suit can summon the other party as witness on his side, the learned single judge of Karnataka High Court observed that such procedure has to be permitted

100 Kusetty Seshamma vs. Chemicala Rama Mohan Reddy 2011 (5) ALD 434: Addagatla Narender vs. Some Vijayalakshmi 2006 (3) ALD 94=2006 (3) ALT 422 101 B. Venkatram Reddy vs. K. Srinivas, 2005 (2) ALD 735

in rarest of rare cases and only in the interest of justice and that because it is a discretionary power to summon a party as witness of other party, it shall be exercised judiciously.102

Plaintiff examined one of the defendants as his witness whose name is incorporated in neither the list of witness nor any application was made for examination of the witness. The question was whether testimony of witness can be doubted on the ground that he was not summoned through process of Court. Supreme Court answered the question in the negative. It is held that Rules 1 and IA of Order 16 read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3)(1) provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the CPC (Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, leave of the Court may be necessary, but this by itself will not mean that Rule 1A was in derogation of sub-rule (3) of Rule 1. Sub-rule (3) of Rules 1 and 1A operates in two different areas and cater two different situations. In view of the above, even though the name of defendant No.2 was not mentioned in the list of witness furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses269.

Court has no jurisdiction to decline to examine the witnesses produced by the party and kept present when the evidence of the party is being recorded and is not closed and the Court has no jurisdiction to refuse to examine the witnesses who are present in the Court on the short ground that the name of the witness was not mentioned in the list filed270.

15. Delay in filing List of Witness – Delay can be condoned

When list of witnesses is filed by one party the other should get a chance to know the nature of evidence which would be adduced. There may not be a fair trial in the absence of such opportunity in a case where permission is given at the last moment to examine the witness. There is every chance for the parties to play hide and seek resulting in the suppression of real truth. That however, does not mean that a party submitting the list of witnesses at a belated stage should be prohibited from adducing any evidence. The procedure is not to be utilised to obstruct the free flow of justice and proper adjudication. Formality may be a hallmark of authenticity but that does not mean that a party should suffer merely because he has not adhered to the formalities laid down in the CPC which are never mandatory in nature. In a justifiable

case, that delay can be condoned by the Court271. What is justifiable would depend upon facts of each case.

102 Kirthi Constructions vs. K. Thippa Reddy in W.P. No. 11605 of 2014, dated 26.03.2014 by Mohan M. Shantanagoudar J : M. C. Ananda vs. M. C. Chikkanna (2001) 4 KarLJ 203=(2002) 3 RCR (Civ) 162=(2002) 3 CivCC 100=AIR 2001 Kar 139=(2001) 1 KCCR 443

16. Court witness: Order 16 Rule 14 deals with the power of the Court to summon a stranger to suit on its own accord

Subject to the provisions of the Code as to attendance and appearance and also subject to any law for the time being in force, where the Court at any time thinks it necessary to examine any person including a party to the suit, who not called as a witness by a party to the suit, the Court may of its own motion cause such person to be summoned as a witness to give evidence or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.

Rule 14 of Order XVI CPC enables the Court to summon any person as court witness if it is essential for just decision of the case. If it is of the view that summoning a particular person as court witness does not advance the cause of justice and is redundant exercise, refusal to exercise the discretion under Rule 14 cannot be interfered in the revision by the High Court.103

Where a party himself wishes to appear as a witness, he shall so appear before any other witness including a Court witness on his behalf is examined. 104Under this provision, summons can be issued to named person but not to an office or institution like ‘medical board’. The name of the Medical Officer who has examined the party has to be furnished for summoning him under Rule 14.105Under rule 14, the court can summon an independent witness only but not on the application of the party to the suit.106A defendant who remains exparte may also be summoned as court witness by the plaintiff.107

17. Party cannot apply to summon any person as Court witness

Under this provision a Court can summon an independent witness only on its own accord, but not on any application made by the parties to the suit. Parliament has not invested with such right on the parties to compel the Courts to call for independent persons to be examined as Court witnesses instead of proceeding under Order 16 Rule 1 or 1-A. It is observed by the A.P. High Court that it is for the Court to exercise the power under Rule 14 on its own to decide the necessity to issue summons and it is not for the parties to compel the Court by application to invoke its jurisdiction108.

On the question whether the party to suit can file application to Court to invoke the power to summon any person as Court witness or it has to be exercised by the Court on its own accord, the High Court of A.P. observed earlier109 that such power can be exercised by the Court on its own accord or on

the application by any party to the proceedings, placing reliance on the judgment of A.P. High Court274. All the three judgments are delivered by Hon’ble Single Judges only. But in the Shaik Abdul Rasool case, Hon’ble Judge has elaborately discussed various aspects to support the finding that the Court cannot be insisted on to exercise the power but shall invoke the same on its own accord, whereas in Kosuru Kalinga Maharaju’s case, Hon’ble Judge merely remarked by reading of Rule 14 (without giving importance to its title) “A reading of the above provision would leave no doubt in my mind to say that either party to the 103 Kaveri Agencies, Adoni vs. Pawan Financiers (2010) 1 CivCC 697=2010 (1) ALT 431=2009 (6) ALD 494 104 Mohd Khadeer & others vs. K. Venkatesham and others 2014 (1) ALD 708=2014 (2) ALT 516 105 Nannapuraju Narasimha Raju vs. Nannaparaju Laxmi Veena 2012 (5) ALT 616=2012 (6) ALD 250 106 Shaik Abdul Rasool vs. G. Lakshmi Reddy 2011 (3) ALD 138=(2011) 3 CivCC 390=2011 (3) ALT 627 107 Chennagiri Venkata Satyanarayana vs. Manepalli Rajya Lakshmamma 2011 (1) ALT 444=2010 (6) ALD 705 108 Shaik Abdul Rasool vs. G. Lakshmi Reddy, 2011 (3) ALD 138=2011 (3) ALT 627 109 T. Narayana Reddy vs. Patan Razak Khan and another, 2009 (1) ALD 839

suit proceedings can summon a person including a party to the suit who is not called as a witness by any party to the suit, as a witness”. The main question before his Lordship was whether a party to a suit can be summoned as Court witness under Rule 14. Inasmuch as the same is direct question in Abdul Rasool. His Lordship made reference to Kosuru Kalinga Maharaju and explained the difference and laid down the law interpreting the Rule 14 in the light of its heading that “Court may of its own accord summon”. Yet in another judgment, Hon’ble Single Judge also observed that the power under Rule 14 includes not

only to summon on its own any person including a party to the proceeding, as Court witness275 and opined that “though the language of Rule 14 shows that such discretion has to be exercised by the Court at its own motion, the law is well-settled that such a power can be exercised even on an application made by a party to the proceedings, since the application if any, can be taken as an information to the Court. This judgment was also referred in Abdul Rasool case.

According to Madras High Court’s view, the Rule 14 is worded in such a fashion, the Court may of its own motion cause such person to be summoned as a witness to give evidence when it thinks it necessary to examine such person, the Court being a neutral party, cannot be expected to act on its own in all cases and the Court has to be provided with all the particulars or the reasons for summoning a person as a court witness and this has been made clear in certain judgements. 110 Where neither side has summoned the material witness gto give evidence, the Court is justified in refusing to call him as a court witness.111But it is not illegal to issue summons for examining the person as court witness on the basis of the application filed by the parties as the parties are entitled to bring to the knowledge of the court about the circumstances and the reasons for examining such person as court witness and thereafter, the court has to take an independent decision whether to examine a person as Court witness or not and if the court thinks that such person has to be examined as court witness, the court can issue necessary summons to that person.112

In all, the wording of Order XVI Rule 14 cannot be interpreted in a pedantic manner and merely because it is stated that the Court may ‘on its own motion’ that the Court has to act only on its motion and cannot act on the application of the party.

18. Order under Rule 14 shall be supported by reasons

No party can insist on the Court to summon any individual as a Court witness. However meritorious a conclusion arrived at by a Judge may be, it becomes incomplete unless supplemented by reasons. Passing a laconic order by trial Court, without stating necessary reasons, is incomplete. Though the order of the trial Court was found to be laconic, the High Court declined to interfere with it because of the limited nature and scope of the application276.

An application for summoning the husband of the plaintiff as Court witness was filed by the defendant in a suit for specific performance on the ground that plaintiff’s husband who worked as a Police Officer issued a receipt on her behalf to the defendant, for the purpose of eliciting certain relevant facts in

110 Palanisamy K.C. vs. M. Chinnasamy, 2002 (4) CTC 222 111 Varadharajan vs. Saravanan 2003 (2) LW 731 112 Balachander vs. Vayyapuri (20134) 1 CTC 304 (Mad)

question, such application cannot be rejected merely on the ground that it serves no purpose on the pretext that the witness will support the case of the plaintiff277.

19. Court witness – On the ground of closeness with other party or collusion

Court has discretionary power to summon any person as a Court witness if it is essential for just decision of the case. If it is a redundant exercise, that power should not be exercised. If both parties failed to examine a particular person as their witness, there is no reason why the Court should summon him as its own witness. A mere suggestion that the said person colluded with the other party or that they are close friends cannot provide any justification for not examining that person when no evidence was produced to substantiate that allegation278.

20. Summoning Advocate as Court witness - when permissible

The plaintiff filed petition to summon as Court witness, the advocate appearing for the defendant to speak to the facts that he had negotiated for the sale of property. The trial Court dismissed that petition on the ground that under Section 126 Evidence Act, no advocate can be called as witness without permission of his client and also on the ground that though the plaintiff has knowledge from the beginning about the factum of negotiations by the advocate, he did not choose to examine him earlier and filed petition at the stage of arguments. The High Court was of the view that it has no hesitation to hold that the said advocate did not act as an Advocate while negotiating the sale transaction and therefore, the question of invoking the provision of Section 126 of Indian Evidence Act does not arise279.

21. Court witness – party remaining ex parte - on facts, cannot be permitted as Court witness

Application under Order 16 Rule 14 was made requesting the trial Court to summon the defendant who remains ex parte as Court witness for the purpose of interpretation of the recital of the will and to hold as to whether the rights of deceased plaintiff were limited or absolute. For this purpose, the trial Court has to necessarily interpret the recitals of the will, while reading them in the light of the provisions of the Hindu Succession Act and the law. Therefore, the presence of defendants 1 and 2 is neither necessary nor relevant for the simple reason that the sale transaction executed by them in favour of 3rd defendant is not in dispute and so there is nothing for defendants 1 and 2 to establish. Even if they are called for cross-examination, what would eventually emerge would be that they would speak only about the sale transaction and nothing more. So, it is a redundant exercise which did not call for invoking power under Rule 14 by the Court280.

22. Cross-examination of Court witness – whether it should to be confined to the facts elicited in chief examination only?

There are divergent views expressed by High Court of Andhra Pradesh281. It was held that it is obvious that the cross-examination of the Court witness by either of the parties or by both shall be limited to those questions posed by the Court to the witness unlike other witnesses tendered by either of the parties, and the cross-examination cannot be on general lines. Whereas in another judgment the High

Court observed that the cross-examination under Section 138 of the Evidence Act need not be confined to the facts to which the witness testified in his examination-in-chief, but he can be examined as to the whole of the case282. Section 138 Evidence Act, reads as follows:

Order of Examination: Witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination: The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court introduced in re-examination, the adverse party may further cross-examine upon that matter.

The provision is therefore made it clear that the cross-examination is not having any limitations. It seems, the judgment in Veesam Mohan Reddy case is based on the Indian law, whereas the judgment on this

point given in Loyola Public School is based on the judgment in Coulson vs. Disborough283 where it was held thus:

“at the trial of an action the Judge has power to call and examine a witness who has not been called by either of the parties, and, when he does so, neither party has a right to cross-examine the witness with the leave of the Court. If the evidence of the witness given in answer to questions put to him by the Judge is adverse to either of the parties, leave should be given to that party to cross-examine the witness upon his answers, but a general cross-examination ought not be permitted.”

Basing on this view, the High Court recorded a finding on law that

“It is, therefore, obvious that the cross-examination of the Court witness by either of the parties or by both shall be limited to those questions put by the Court to the witness unlike other witness tendered by either of the parties, the cross-examination cannot be on general lines.”

Because, Veesam Mohan Reddy is laying down the law in the light of Indian law that cross-examination of a witness need not be confined to the facts elicited in his chief examination, it seems to be an acceptable view and would operate as a binding precedent.

23. Duty of the person summoned

Order 16 Rule 15 explains that whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summon for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced at such time and place. When a witness is summoned to produce a document, he has to produce the document in answer to that summon. If the document is not in his possession, he has to satisfy the Court why he is not producing the document. If the witness files an affidavit stating that the document was not with him, then the duty of the witness ends there. If the Court was not satisfied with the affidavit, it would have to ask the witness to give further details as to when he will get back the document or to give address of the person with whom he has entrusted the same. The Court shall not ask the witness to file additional affidavit of any other facts other

than for which he was summoned. Unless in exceptional circumstances where it is necessary to clarify certain things given by a witness in oral evidence such witness cannot be compelled to file an affidavit284.

24. Summons to produce document

Order XVI Rules 6, 7 and 20 have to be read together in this context. Order XVI Rule 6 provides that any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with summons if he causes such document to be produced instead of attending personally to produce document.

Rule 7 further empowered the Court to require ‘persons present in Court’ to give evidence or produce document. Rule 7 of Order XVI does not contemplate any summons to that person present in court. Rule speaks that any person present in Court may be ‘required’ by the court to give evidence or to produce any document ‘then and there’ in his possession or power.

The above two rules underscore the power of court, to secure justice by its participation in trial. The expression ‘any person’ employed in the above Rules 6 and 7 obviously would include a party to the proceeding.113 This is evident from Order XVI Rule 20 and is well accepted by Courts. Rule 20 provides that where any party to a suit present in court refuses, without lawful excuse when required by the court to give evidence or to produce any document, then and there in his possession or power, the court may pronounce judgement against him or make such order in relation to the suit as it thinks fit. But a learned judge of AP High Court held that an application filed by one of the parties to suit who is propounder a Will which is said to be in the custody of his mother, to compel his mother to produce the will, the court cannot issue a direction to a person who is not a party to suit and that it is the responsibility of the party to place the Will before the court to sustain his contention.114 The learned single judge did not consider the import of the expression ‘any person’ used in the above Rules and the view of the Supreme Court was not brought to the court’s notice. This view of AP High Court cannot be a precedent.

As seen from the language adopted in Rule 6 of Order XVI, that Rules enables the Court to summon any person. That provision does not attract to a situation where the party himself seeks to summon a witness to produce a particular document.115

When a summons was issued under Rule 6 to produce a document, that person can himself produce the document or depute anybody else to produce the document. If a person is summoned to produce document only and not to give evidence thereon, parties cannot be permitted to cross examine the person who produced the document.116If under Rule 6 application was made to summon the original document from the public authority, the Court has to be satisfied that original document is necessary and shall

113 Delta Distilleries Limited vs. United Spirits Ltd & another (2014) 1 SCC 113= AIR 2014 SC 113=(2013) 13 JT 1=(2013) 7 Supreme 97=(2013) 9 SCR 573=(2013) 12 Scale 51=(2014) 68 VST 153 (SC)=(2014) 1 RCR (Civ) 735=(2013 (4) ArbLR 47 (SC)=(2013) 6 CTC 406=(2013) 5 LW 405=(2014) 1 BomCR 54=(2013) 6 ABR 925 114 K. Krishna Kumari vs. Drapaneni Krishna Kumar 2013 (4) ALD 421=2013 (3) ALT 81 115 Duvvada Parasuram Choudary vs. Santha Dalayya (2014) 4 ALT 71 (Court referred earlier decision and followed the principle) 116 Maddula Brahmaiah vs. Sri Rama Financial Services 2009 (1) ALD 103=(2009) 3CivCC 556=2009 (2) ALT 23

record reasons; alternatively it has to be established to the satisfaction of the Court that application for certified copy has been duly made and not granted by the public authority. If the party failed to take steps to obtain certified copy, court has to refuse summons under Rule 6.117 Rule 129 of the Civil Rules of Practice (AP) may also be referred in this regard.

Applying for summons to produce document shall be bonafide. At the fag end of trial or at the time of arguments, if application is filed to summon certain document, the Court has to see whether the existence of such document was not in the knowledge of the petitioner earlier before letting the evidence. Thus, if a document is sought to be summoned from Police and the said document is in the knowledge of petitioner even earlier to filing application, the petition is liable to be dismissed.118

It must be kept in mind that the parties to the suit are generally having liberty to adduce oral and documentary evidence of their choice to substantiate their case. The question of relevancy or validity of documents has to be considered after they are tendered in evidence. Before a document is summoned from the custody of any office, the Court cannot embark upon a duty to scrutinise or consider the legality or relevancy of the same before it is actually tended in evidence under Order XVI Rule 6 of the Code.119

25. Person summoned to produce document need not appear personally

Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. (Or.16 R.6) Any person so summoned and attending shall unless the Court otherwise directs, attend at each hearing until the suit has been disposed. On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and in default of his furnishing such security, may order him to be detained in the civil prison285.

26. Court has power to require any person for production of document or to give evidence

Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. (Or.16 Rule 7) ‘Any person’ includes the party to the suit. On a plain reading of the Rules as they are obtaining in the amended Code, the Court has the power to direct a party to the suit present in court, or any other person present in court, to give evidence in the suit and if he were a party to the suit and he refuses to give evidence without lawful excuse, the power to pronounce judgment against that party or to make such order as the court may think fit.

The Court also has the right to proceed against a party summoned to give evidence as if he were a witness in the suit. In addition, under Rule 14 of Order XVI, the court has the power at any time it thinks

117 D. Ram Mohan Rao vs. Sridevi Hotels Pvt Ltd., Managing director Sri Mohan Reddy 2005 (6) ALT 712=(2006) 1 CivCC 584=(2006) 1 RCR (Rent) 114=(2005) 3 LS 293 118 Abdul Naveed vs. Dr. Masbah Najam (2012) 2 KarLJ 692=(2012) 4 KCCR 2682=(2012) Supreme (Kar) 192 119 Chekka Krishna Prasad vs. Kotha Appa Rao 1998 (1) ALD 680=(1998) 2 CivCC 452=(1997) Supreme (AP) 1198

necessary, to examine any person including a party to the suit of its own motion on a day to be appointed by the court. The failure of a party to the suit summoned in terms of Rule 14 might also lead to the consequence provided for in Rule 20 of Order XVI, of, a judgment being pronounced against that party or the passing of any other appropriate order which the court thinks suitable in the circumstances of the case.

When compromise was effected in a suit out of court, summoning that document from a person other than the parties to suit, has no justification.120

Order XVI Rule 21 was substituted by Kerala High Court by notification dated 9.6.1959 is to the following effect:

Rule 21: Rules in case of parties appearing as witnesses: (1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.

(2) When a party to a suit gives evidence on his own behalf, the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing.

Rule 21 of Kerala does not hold that a party to the suit has got the right to examine the opposite party as his witness.121

27. Contents of summons to witness

Every summons for the attendance of a person to give evidence or to produce document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy. (Or.16 Rule 5)

28. Procedure where witness fails to comply with summons

Order 16 Rule 10 prescribes procedure where witness fails to comply with summons.

(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court—

(a) Shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or

(b) May, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or

120 Gyarsa vs. Shanker (2008) 1 RLW (Raj) 433 121 Jortin Antony vs. S.P.D. Marthanda Varma AIR 2000 Ker 369 (DB)=(2003) 3 ILR (Ker) 253=(2000) 2 KLT 680=(2000) 2 KLJ 297

cause him to be so examined by any Court, touching the service or non-service of summons.

(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12; Provided that, no Court of Small Causes shall make an order for the attachment of immovable property.

Rule 10 of Order XVI of the Code visualised several contingencies as and when required and provided safeguards. Thus, where the plaintiff was unable to secure the presence of his own witness for cross examination on behalf of the defendant complaining that the witness was won over by other side, the procedure under Rule 10 has clearly contemplated to summon such a witness. That means, if a witness is not present, it is open to the party to file an application seeking issuance of summons to the witness, who shall be bund to appear before the Court. Failure on the part of such witness to appear, the procedure contemplated under law shall be followed.

However, without an application under Rule 10, the court cannot initiate the procedure thereunder. If a party makes an attempt to eschew the evidence which is against such party, a duty is also cast on the court to infer that the party is trying to defeat the advantage that the other party is likely to get as a result of not producing that witness for cross examination. In such contingencies, looking from the procedure contemplated under Rule 10 of Order XVI, there is no room for arriving at a conclusion that the Courts are not empowered to insist filing of a petition or permitting the parties to file a petition under Order XVI Rule 10 requiring the presence of the witnesses who fail to make their appearance for further examination on behalf of the parties.122 It is held that without following the procedure under Rule 10, the party cannot ask the court to eschew the evidence of that witness.

Where the witness is avoiding coming to witness box even after taking proper steps under Rule 10, the application for issuance of summons or if necessary warrant for his arrest in order to procure his present, the court cannot reject such application without cogent reasons.123If once the summons were issued and the witness did not comply with them, the court has jurisdiction to issue summons to the witness second time also.124

122 Sarnala Lakshmana Rao vs. Sarnala China Jamalayya (1999) 4 CCC 222 (AP) 123 Chitranjan Prasad Singh vs. Manki Devi AIR 1983 Pat 231= (1983) BLJ 165 (1983) LS (SRC) 201 (Pat) 124 Dilawarkhan Ahmedkhan vs. Manbee Ahmed Khan & others (2003) 1 MhLJ 533=(2002) Supp2 BomCR 768=(2003) 1 AllMR 647=(2003) 1 BomLR 688=(2003) 2 CivCC 449

A witness who was summoned to give evidence is at liberty to file his chief examination in the form of an affidavit. A cited witness from whom the party has got such affidavit may be summoned for his appearance in the court 125

29. Coercive steps against witness who fail to comply with summons

According to Rule 20 of Order 16, where any party to a suit present in Court refuses without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 21 provides that where any party to a suit is required to give evidence or to produce a document, the provisions as to summoning of witnesses shall apply to him so far as they are applicable.

Ordinarily the proper procedure in cases where the presence of the party for purposes of examining him as a witness is desired by the other party or by the Court, is to issue summons in compliance with Section 32 CPC which provides that the Court may compel the attendance of any person to whom a summons has been issued under Section 30 and for that purpose may (a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine upon him not exceeding five thousand rupees; (d) order him to furnish security for his appearance and in default commit him to the civil prison. Both the provisions, namely Order 16 Rule 10, Rule 21 and Section 32 shall be read comprehensively for effective enforcement if a party to suit or a witness failed to obey the summons issued by Court for the purpose of attending the Court to give evidence, or, to produce document, without showing justification for his failure. The Court, in such cases shall deal with the defaults in the manner provided in that connection and his presence should be enforced by issue of warrant and by proclamation and attachment of his property. These coercive measures were sufficient to accomplish the desired purpose. It is also open to the Court to draw an adverse inference against the party having regard to his conduct. The penalties provided by Order 9 Rule 12 CPC could not be visited on the party unless the essential requisites of that section are fulfilled. It is necessary for the Court to satisfy itself that there was no sufficient cause for the party’s

failure to appear in person286. If a witness is not present, it is open to the party to file an application seeking issuance of summons to the witness, who shall be bound to appear before the Court. Failure on the part of such witness to appear would result in taking up the procedure contemplated under law. The Code visualizes a contingency like the party’s inability to secure the presence of his own witness, who gave evidence – in – chief but failed to turn up for cross-examination, may be due to being won over by the other party, as apprehended by the plaintiff.

The procedure contemplated in this regard is to summon such a witness before the Court insisting his presence for further evidence. This is precisely what is stated by Order 16 Rule 10. In other words, if a witness if not present, it is open to the party to file an application seeking issuance of summons to the witness, who shall be bound to appear and his failure would result in initiating the procedure contemplated under law. If no application is filed by the party to summon the witness as above, the procedure under Order 16 Rule 10 cannot be insisted. It is obvious that if a party makes an attempt to eschew the evidence which is against such party, a duty is also cast on the Court to infer that the party is trying to defeat the advantage that the other party is likely to get as a result of not producing that witness

125 M. Dhana Lakshmi vs M. Chinna Ganganna 2013 (5) ALD 20=2013 (5) ALT 448

for cross-examination. Looking from the procedure contemplated under Order 16 Rule 10 there is no room for arriving at a conclusion that the Courts are not empowered to insist filing a petition or permitting the parties to file a petition under Rule 10 requiring the presence of the witness who fail to make appearance for further examination on behalf of the parties.

In this case before the High Court, the plaintiff has not filed petition seeking to summon his own witness (PW2) with the sole intention to defeat the advantage the defendant is likely to get as a result of the deposition made by PW2 in his chief-examination287. Under Rule 10(2) the Court can issue proclamation only when it has reason to believe that the evidence of the person is material and further that such person has, without lawful excuse failed to attend or to produce the document in compliance with such summons or has intentionally evaded service. The jurisdiction of the Court to issue a proclamation under Rule 10(2) depends upon finding to the effect that the evidence of a witness is material and also that the witness has failed to attend without lawful excuse or had intentionally avoided service. The Court gets jurisdiction to issue warrant, either with or without bail, in lieu of or at the time of issuing a proclamation or an any time thereafter, only where it comes to a explicit conclusion about the matter referred to in Rule 10(2) and not otherwise. If the Court directs issue of a warrant for securing the attendance of a witness, without recording a clear conclusion in respect of the matter, aforesaid, the order passed by it would be without jurisdiction. But the Court cannot, in a casual manner issue a proclamation or a warrant when the witness had failed to attend the Court unless there must be reason to believe that the evidence of the witness or the production of any document is material to the case. It must, accordingly record brief reasons288.

On appearance of witness, the attachment may be withdrawn under Order 16 Rule 11. If he fails to appear, (Or.16 Rule 12(1)) or does not appear or, though appears, fails to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof to the attached and sold or, if already attached under Rule10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any.

Order 16 Rule 19 states that no one shall be ordered to attend in person to give evidence (a) unless he resides within the local limits of the Court’s ordinary original jurisdiction or (b) not within such limits but at a place less than one hundred Kms. or where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate less than 500 Kms. distance from the Court House. But this provision became redundant after the Code is amended empowering the Court to get the evidence of any witness recorded by the Commissioner. This aspect was dealt with by the A.P. High Court289.

For mere absence of the witness would not be sufficient to issue non-bailable warrant against him. There shall be proof of deliberate failure on the part of the witness to comply with summon or that he has intentionally avoided the service. On such default, the court may issue a proclamation requiring the witness to give evidence or to produce document. Before initiating any coercive action against the witness who did not comply with the summons or avoiding service of summons, the Court shall examine the record and satisfy whether the summons are actually avoided or refused, whether sufficient time was given to the witness to attend the court after service of summons. The liability of witness to an action by

court in terms of Rule 10 accrues only when there has been satisfactory service of summons on him and as such, a finding of the court embodying its satisfaction about the service of summon on the witness is an essential prerequisite for any action in terms of the said order. Presence or absence of averment from the side of the applicant about service for invoking the said provision has no relevance as the court is under a duty to arrive at its own satisfaction before initiating the penal action.

There are several alternatives before the Court to enforce the attendance of the witness for giving evidence or to produce document. In lieu of the proclamation, the court may issue a warrant either with or without bail for the arrest of such person and also may make attachment of his property. But the Court cannot in a casual manner issue a proclamation or a warrant when the witness has failed to attend the court. Before taking any such step, the court must have reason to believe that the evidence of the witness or the production of any document is material to the case and record the reasons briefly.

If an Advocate Commissioner who filed his report into court failed to turn up in pursuance of summons issued by court for his evidence, the order of the court rejecting the report is upheld by the High Court.126

30. Attendance of witnesses confined or detained in Prisons

Prison includes (1) any place which has been declared by the State Government by general or special order, to be a subsidiary jail; and (b) any reformatory, borstal institution or other institution of a like nature (Or. XVI-A Rule 1(b) (ii))

Whenever the Court finds that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the Officer in charge of the Prison to produce that person. If the distance between the prison and Court House is more than 25 Kms. the Court shall not pass such order for the production of the person, unless it is satisfied that examination of such person on commission will not be adequate. (Order 26A Rule 2) Before making that order, the Court shall require the party at whose instance or for whose benefit the order is to be passed, to pay into Court sufficient money to defray the expenses of the execution of the order, including travelling and other expenses for the escort provided to the witness. (Rule 3)

The Government has power to exclude certain persons or class of persons from being removed from the prison, regard being had to the nature of the office, the likelihood of the disturbance of public order and general public interest. (Rule 4) Even the Officer in charge of the Prison may also refuse to produce the person before Court, on certified illness, if the person is under committal for trial or under remand pending trial or preliminary investigation, or is in custody for a period which would expire before the expiration of the time required for complying with the order and taking him back to the prison in which he is confined or detained or is a person exempted by the Government under Rule 4 (Rule 5). The prisoner shall cause the person to be taken to the Court as mentioned in the order under Rule 2, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison. (Rule 6) The Court has power to get the evidence of the person detained or confined in prison by Commissioner whether within the State or elsewhere in India,

126 Ram Dayal Sharma vs. Dhanmanti Devi (2004) 4 BBCJ 80 (Pat)=(2004) 3 PLJR 437

provided his evidence is material to the suit. (Rule 7) For this purpose the procedure under Order XXVI shall be followed.

VI. Impounding of insufficiently stamped documents

1. Impounding of Documents – for collecting stamp duty and penalty & for safe custody – difference between

Order 13 Rule 8 CPC states that, notwithstanding anything contained in Rule 5 or 7 of Order 13 or 7 Rule 17, the Court may if it sees sufficient cause, direct any document or book produced before it in any suit, to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit. A reading of Order 13 Rule 8 discloses that the word ‘‘impounding’’ referred to therein is in the context of safe custody and has nothing to do either with the determination of the nature of the document or the collection of deficit Court fee thereon. The contextual parameters for passing an order under Order 13 Rule 8 of the Code are totally different from those relating to determination of nature of document or collection of deficit stamp duty. Under this Rule, the Court has to consider as to how far the parties can be permitted to submit only a copy of document as distinguished from the document itself. In contrast, the determination of nature of the document for the purpose of collecting the deficit stamp duty is a different exercise294.

2. Document shall not be impounded at receiving stage

More often, the trial court is faced with the problem as regards to the impounding of document either as regard to the stage at which the document could be impounded or as regard to the procedure followed in ordering the impounding of the document. In connection with order of impounding or rejection, large amount of confusion is prevailing in the trial courts. In some cases, based on the application filed by the parties, the court used to directly impound the document by allowing such applications only on the ground that the document is not duly stamped. In some cases, the order of impounding the document is passed only when such document is sought to be marked in evidence. Sometimes the courts, on the basis of the objection raised for marking on the ground of insufficiency of stamp, order for impounding of the documents. There are instances where the trial courts used to insist the plaintiff to pay the stamp duty and penalty on an insufficiently or unstamped document as condition precedent for registering the plaint as suit.

In the light of the provisions of the Code of Civil Procedure as regard to production of evidence and the provisions of section 33 and 34 of the Stamp Act, it is clear that a document or instrument, which is required to be duly stamped and is not duly stamped or insufficiently stamped, in inadmissible in evidence. The purpose of Sections 33 and 34 of the Stamp Act is not to admit any document in evidence, if it is not duly stamped. It is in this context, the impounding of the document has to be considered, as once the document is marked, it becomes an evidence. From the procedure contemplated under Order VII Rule 14, Order XIII Rules 1, 4, 6, and 8; Order XVI Rule 1 and Order XVIII Rule 4 makes it abundantly clear that the admissibility or inadmissibility of document or its rejection or impound arises only when it is tended in evidence. In the light of procedure prescribed under the Code read with Sections 33, 34 and

35 of the Stamp Act, impounding of document has to be considered only when it is produced in evidence and not otherwise.

Stamp duty in respect of an improperly stamped document filed in Court has to be considered only at the time of admission of the document into evidence under proviso (a) to Section 35 of the Stamp Act. The Court errs in ordering payment of stamp duty and penalty before the stage of admission of document even before the suit reached evidence phase.. So the question whether a document filed into Court is admissible in evidence or not had to be considered only when it is sought to be introduced in evidence,

but not when it is sought to be received by the Court295. This view is referred with approval in Para (8) of the judgment in Setti Siddamma vs. S. Ramulu, 2004 (5) ALD 14. In Santha Kumari’s case, the Court recorded observed:

‘‘.......Section 35 proviso (a) provides that the instrument which is unstamped or insufficiently stamped shall be admitted in evidence on payment of duty and penalty. Obviously, it presumes that the document would be admissible in evidence if the stamp duty and penalty were paid. It also presumes that the document would be having any other defects (for example, being unregistered although it is required by law to be registered, and therefore, is inadmissible under Section 17 of the Indian Registration Act.) This suggests that the collection of stamp duty should not be done before the stage of admissibility of the document in evidence. Further it is obvious that, if stamp duty and penalty are collected in advance and, later the document is not admitted in evidence, the party concerned would have to pay penalty equal to ten times the duty or deficit duty and take the chance of getting refund afterwards under Section 39 and lost the chance of having to pay a smaller penalty in the first instance at the discretion of the Collector under Section 40(1)(b) without the advantage of the document being admitted in evidence. This would cause undue hardship to the party. Such undue hardship will be avoided if the provision under proviso (a) to Section 35, as also indicated in 1955 – 1 MLJ 457 were followed. In 1955-1 MLJ 457 the question of admissibility due to want of registration was also raised at the time when the question of admissibility due to want of stamp was raised. In the present case, the question of admissibility due to deficiency of stamp also seems to have been raised. This does not make a difference to the principle that stamp duty has to be collected at the time of admission of the document into evidence under proviso (a) to Section 35 of Indian Stamp Act. I find that this point is tenable and hold that the learned District Munsiff erred in ordering payment of stamp duty and penalty before the stage of admission of documents in evidence was reached.’’ (Emphasis is by the author)

This view is followed in Y.Vijaya vs. Bojja Bhagaiah, AIR 2004 AP 506. The view expressed by the High Court is:

‘‘........The procedure adopted by the Court below in calling upon the revision petitioner to pay stamp duty and penalty on a document even before it is sought to be introduced into evidence is contrary to the ratio in K.Santha Kumari vs. K. Suseela Devi (supra) where, following Devasikamani Gounder vs. Andamuthu Gounder, 1955 (I) MLJ 457, it was held that stamp duty on unstamped document filed in Court can be collected only at the time of its admission into evidence as per Proviso (a) to Section 35 of the Stamp Act, and that Court errs in ordering payment of stamp duty and penalty even before the stage of admission of the document in evidence is reached.’’

It is evident, from the aforesaid judgments, that the requirement of collection of stamp duty and impounding a document which is insufficiently stamped, arises only at the stage of admission of the document in evidence and not prior thereto.

Sometimes courts call upon the party to pay the stamp duty and penalty, even though such document is not admissible in evidence. The Apex Court in Peteti Subbarao case, 127 while considering the admissibility of the document, has observed that, the document which was in the nature of Xerox copy of original document and was sought to be produced in the evidence, impounding of Xerox of the original document does not arise. It is held that the copy of the document or the Xerox copy which cannot be marked in the evidence, the party cannot be called upon to pay the duty on the copy of the document. It is only the original document, which requires the duty or registration and which is sought to be marked in the evidence, alone could be impounded.

‘For any purpose’ referred to in section 34 of the Stamp Act should be given its natural meaning and effect, as such, any other purpose also include a collateral purpose, whether it is for the purpose of proving the main issue or for the collateral purpose, if the party relies on the document in the evidence and which requires payment of duty or requires the compliance of any other provisions of law, such document shall not be admitted in evidence unless it complies with the requirement of law. 128The expression ‘as evidence’ used in Sec. 17 of the Registration Act must be understood as an evidence which a party seeks to adduce in relying on recitals of document. It does not completely affect the production of the document itself.129

3. Duty of Court while impounding document

When a document is produced and is sought to be marked in the evidence in proof of the issue raised in the suit, court is required to see as to whether, the document is admissible in evidence, or whether the document is irrelevant, or the document requires the compliance of any provisions of law. Payment of stamp duty is revenue to the Government, as such, it is the duty of the court to verify the document sought to be admitted in evidence and if it is not duly stamped or insufficiently stamped, it shall call upon the party producing the same to pay the duty and penalty. If the same is paid, the court may proceed to mark the said document in evidence. If the duty is not pay, the court may impound the original document and send the same to Registrar for further action. Party objecting to the marking must raise his objection at the time of marking, if the document admitted without object, the party cannot raise its objection as to the admissibility of the document in evidence except under sec. 58 of the Stamp Act.

It is not as if the party who marks an unstamped document can go scot free without payment of the stamp duty under the instrument forever. As per section 61 of the Stamp Act, if the appellate court is of the opinion that such instrument should not have been admitted in evidence without payment of duty and penalty, the appellate court can determine the amount of duty chargeable and impound the instrument and

127 Peteti Subba Rao vs. Anumala S. Narendra (2002) 10 SCC 427 128 Avinash Kumar Chauhan vs. Vijay Krishna Mishra (2009) 2 SCC 532=AIR 2009 SC 1489=(2009) 1 Scale 80=(2009) 1 JT 656=2009 (1) ALD 109 (SC)=2009 (2) ALT 19 (SC)=(2009) 6 BomCR 334=(2009) 3 MLJ 409 (SC)=(2009) 1 RCR (Civ) 615=(2009) MPLJ 289 (SC) 129 Radha Ammal (died) & others vs. Manthi Reddiar (2008) 8 MLJ 619 (Mad)=(2008) 3 ChLT 796

record a declaration to that effect and send the instrument to the Collector for collecting stamp duty on the instrument.130

Ordinarily, objection to the admissibility of evidence should be taken when it is tendered and not subsequently.131 However, a learned single judge of High Court of judicature at Hyderabad for the states of Telangana and Andhra Pradesh observed that if the court, by mistake ignoring certain clauses in the document, say about delivery of possession, collected lesser stamp duty and penalty, can decide the admissibility of document in evidence on the objection raised by the defendant at a later point of time.132 Similarly, if a document is exhibited without any objection, aggrieved party can still raise objection as to admissibility of document, if the matter relates to substantive law.133 In this case, the objection as to non-registration of document was raised subsequently after the document is marked in evidence. It may be noted that the objection is not in relation to insufficiency of document under the Stamp Act.

4. Admission and marking of documents in trial of suits is not same as in hearing of interlocutory applications

The prohibition created against an instrument being admitted in evidence, and the requirement of impounding an insufficiently stamped instrument, by a person having authority to receive evidence would necessitate an examination as to whether marking of a document in an interlocutory application amounts to admitting the instrument in evidence. A reference to Rule 115 of Civil Rules of Practice is necessary for the analytical understanding of this question. Rule 115 reads:

Marking of Exhibits:

(1) Exhibits admitted in evidence shall be marked as follows:

(i) if filed by the plaintiff or one of several plaintiffs, with the capital letter ‘A’ followed by a numeral A1, A2, A3 etc.;

(ii) if filed by the defendant or one of several defendants with the capital letter ‘B’ followed by a numeral, B1, B2, B3 etc.;

(iii) if Court exhibits with the capital letter ‘C’ followed by a numeral C1, C2, C3 etc;

(iv) if third party exhibits, with the capital letter ‘X’ followed by a numeral X1, X2, X3 etc.;

(2) The exhibits filed by the several plaintiffs or defendants shall be marked consecutively

(3) If in a proceeding subsequent to the trial of a suit or matter, further exhibits are admitted in evidence, they shall be marked in accordance with the above scheme with numbers consecutive to the number on the last exhibit previously filed.

130 Kaliya Perumal vs. Dhandapani (2010) 2 CTC 689 (Mad)=(2010) 3 MLJ 857=(2010) 2 LW 644 131 Ramniklal Shivlal Bavishi Since deceased through his Legal Heir vs. Tulsidas Chakubhai Gorvadiya since deceased through his Heirs (2016) 1 GLR 624 (Guj) 132 Srinivasa Builders vs. A. Janga Reddy 2016 (3) ALD 343=2016 (2) ALT 321 133 Boggavarapu Narasimhulu vs Sriram Ramanaiah 2014 (2) ALD 426=2014 (1) ALT 577

5. Rejection of irrelevant or inadmissible documents

Order 13 Rule 3 empowers the Court to reject any document at any stage of the suit, which is considered to be irrelevant or otherwise inadmissible, only after recording the grounds of such rejection. Again while reading this rule also a question would crop up whether even before tendering an instrument in evidence, a Court can entertain an enquiry as to adequacy or otherwise of stamp on an instrument. That question has to be examined in the light of the discussion made in the above para. But other than stamp and registration, some aspects may disclose that the document is inadmissible, like a secondary evidence without laying a foundation in the pleading for its admission, or a suit document is not containing the signature (promissory note in this case) on adhesive stamps affixed commencing from and extending to

paper of document etc.300. In a suit based on promissory note, defendant has taken a specific plea that the promissory note is fabricated and that the stamps affixed thereon are removed from another record. Having verified the suit promissory note, the Court below found that the alleged signature of the defendant on the adhesive stamps of the document did not commence with or extend to the actual promissory note. It is contended by the plaintiff, that it was not open to the Court below to reject the document by arriving at a conclusion with regard to admissibility of the suit document even before the commencement of the trial. The High Court held that inadmissible documents under Order 13 Rule 3 of CPC can be rejected at any stage of the suit proceedings; however the reasons for such rejection shall be recorded. When Court below having taken into consideration, the defence taken by the defendant, and after examining the document found that such objection is factually correct, it was justified in rejecting the document in question as inadmissible in evidence301. In this case, there was no enquiry as to the character of the document, but a mere physical examination of document itself proved that the same is not admissible in evidence and therefore, the power under Rule 3 is held properly exercised by the Trial Court.

If the Court is of opinion that the unregistered deed of relinquishment cannot be used even for collateral purpose, considering nature of suit, it has the power to reject that document in view of Rule 3 of Order 13. Under this Rule the Court has not only got power but also has a duty to reject that document. On a careful reading of the said document if it is disclosed from the terms thereof, that the relinquishment of all rights in immovable properties had been specified and so, there cannot be any doubt at all that the document not only suffers from the deficiency of stamp duty, but also suffers from the ill of inadmissibility being an unregistered document302.

6. Duty of Trial Court to decide admissibility of document when objection is taken

It is explicit from the observation of the Supreme Court303 that though the trial Court is empowered to pass a judicial order in respect of the admissibility of the suit document at any time before the suit is finally disposed of, when once an objection is raised by the defendants as to the admissibility of the document after it is tendered for marking in the course of the plaintiff’s evidence, the trial Court is under a duty to judicially decide and dispose of the objection raised by the defendant as to the admissibility of the document. In a case where the trial Court without straightaway disposing of the objection raised by the revision petitioner/defendants as to the admissibility of the agreement of sale basing on which the suit is filed, has been postponing to decide the issue indefinitely and was bent upon taking further steps to

proceed with the trial without making decision on the crucial issue as to the admissibility of the suit document, the High Court held that the course adopted by the trial Court is nothing but refusing to exercise the jurisdiction vested in it to decide on the admissibility of the suit document and such course is illegal304.

7. Principles relating to decision on admissibility of documents

A full bench of Bombay High Court,134 after referring to various pronouncements of Supreme Court and other High Courts laid down the following principles:

1) Objections as to the admissibility of a document in evidence fall into three categories: (a) an objection on the ground that document is insufficiently stamped; (b) an objection which is directed towards the mode of proof adduced for proving the document; (c) an objection that the document is ab-initio inadmissible in evidence;

2) An objection on the ground that a document is not duly stamped and therefore is in admissible has to be ‘judicially’ determined; such the document is tendered in evidence and before it is marked as an exhibit. Such an object cannot be deferred for decision to a later stage of the suit;

3) An objection to a document being admitted in evidence on the ground that the mode adopted for providing the document is irregular, cannot be permitted to be raised at a stage subsequent to the stage of marking of the document as an exhibit. If the objection is upheld, a party against whom the objection is allowed has an opportunity to prove the document by adopting appropriate means.

4) An omission to object to the mode of proof becomes fatal because a party which is entitled to object to the admissibility of a document being tendered, allows by the omission the party tendering the document to act on the assumption that his opponent is not serious about the mode of proof. Consequently, a failure to raise a timely objection in regard to the mode of proof, would amount to a waiver on the part of an objector of an entitlement to insist upon formal proof of the document.

5) An objection to the admissibility of a document on the ground that it is ab-initio inadmissible in evidence is available to be raised even at a later stage, including in appeal or by way of revision. For instance, in the case of an unregistered sale deed or an unregistered lease deed, which requires registration, no evidence of the terms thereof can be adduced;

6) An objection to the admissibility of a document in the first and second categories has to be taken before the document is exhibited, which postulates a decision on the objection ‘then and there’, before the document is marked as an exhibit;

7) The mandate of Order XIII Rules 3 and 4 read with Order XVIII Rule 4 91) and the weight of judicial authority suggests that an objection to the admissibility of a document should be raised by an objector and should be decided by the Court at the earliest opportunity;

134 Hemendra Rasiklal Ghia and others vs. Subodh Modi and others (2008) 6 BomCR 519 (FB) (also see: Ayushakti Ayurved Pvt. Ltd. vs. Hindustan Uniliver Ltd., (2013) 1 BomCR 599 (DB)]

8) However, by way of exception, an objection relating to the admissibility of a document requiring a resolution of complex issues or when the admissibility of the document is dependent on further evidence, can be deferred by the trial judge in an appropriate case until and after the evidence is recorded, but before the judgement is pronounced. In such an event, a document may be tentatively exhibited subject to the objection, clearly indicating that the objection has not been judicially determined. this procedure is only an exception to the ordinary rule under which admissibility of a document should be decided as and when it is raised without deferring the question of admissibility until the final judgment of the case;

9) These principles must also govern when the Court appoints a Commissioner for recording evidence.

8. Marking of document does not dispense with proof

When once a document has been marked as exhibit during the trial and has been used by the parties in examination and cross-examination of their witnesses, it does not dispense with the proof of document. The proof of the plaintiff’s books of account became important because plaintiff’s accounts were impeached and falsified by the defendant’s case of larger payments than those admitted by the plaintiffs. Not proving the account books in order to further prove the day book and the ledger would drive the Court to infer that his books would not have supported the plaintiff’s case312.

Where the documents are filed along with affidavit in lieu of chief-examination, mere giving of identification marks to the document by the court at that stage cannot constitute admission of document as contemplated under sec. 36 of the Stamp Act. Where there was no admission of document, as provided for in law, question of there being any bar from raising objection as to admissibility does not arise. 135 Where a document is marked after objection is recorded, subject to separate orders, it is not ‘marking’ of document and it is only tentative marking and subject to orders thereon.136

VII. Recording of evidence –Procedure

1. Order of examination of witnesses

With reference to Rule 3A of Order 18, as among the defendants who oppose the claim of plaintiff, they can lead evidence as per their choice. Which of the several defendants in a suit has to lead evidence in the first instance is not laid down by CPC or the Civil Rules of Practice, but where some of the defendants support the case of the plaintiff and where some of the defendants oppose the case of the plaintiff, defendants who support the case of the plaintiff should lead evidence in the first instance before the defendants, who are opposing the case of the plaintiff lead their evidence. Neither the Court nor the plaintiff can compel any such defendant to lead evidence in the manner stated by him. In this case, both

135 D. Sujata vs. Revoorl Vasantha 2005 (4) ALD 878=(2005) 2 LS 487=2005 (4) ALT 626 136 Malliga Paneer Selvam vs. Raja Sathyanarayana Shetty (2007) 4 AIR (Kar) ® 326=(2007) 3 KCCR 1698=(2007) 3 KLO 2192=(2007) ILR (Kar) 2786=(2007) 5 KarLJ 222

the defendants are opposing the case of the revision petitioner/plaintiff, and are appearing through the same advocate. So it is for them to choose who should lead the evidence in the first instance.137

According to a learned single judge of Karnataka High Court, insistence of examination of a party as a first witness is not an inviolable rule and the rule itself provides an exception; may be that the Court has to assign reasons for giving such permission. Therefore, in the opinion of learned Judge, the provisions of Order XVIII Rule 3A are not mandatory and do not necessarily visit with the consequences rendering such evidence which was recorded without obtaining leave, a nullity.138Where the defendants were old in age and also not keeping good health, court was not justified in rejecting their application under Order XVIII Rule 3A and the ends of justice would be met if the same is allowed. In such circumstances, it was said that the Rule 3A is only directory.139

The settled law is, the defendant who is sailing with the plaintiff has to depose before commencement of evidence of contesting defendant and he cannot be permitted to give evidence after closure of evidence of contesting party’s witnesses.140 Even a court witness also has to be examined after the examination of party witness and not before. Thus the party witness has first right of appearance.141It is held that even any special witness also should not be permitted by the court before examination of the party witness.142 In this reported case, the plaintiff wanted to examine one of the defendants in the suit who remained exparte. Even in the clubbed matters the court has to scrupulously follow the mandate of Rule 3A of Order XVIII.143

The following provisions of the Indian Evidence Act may also be read in relation to order of production and examination of witnesses in a civil trial.

Section 135 - Order of production and examination of witnesses: The order in which the witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.

Section 138 - Order of examinations: Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination: The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

137 Namala Govindu vs. B. Lakshmanna 2008 (1) ALD 268=2008 (1) ALT 630 (Followed in Y. Prabhakar Reddy vs. K. Pramod Kumar Reddy 2016 (2) ALD 424 138 C. Sesha Reddy vs. T. Basavana Goud AIR 2003 Kar 335=(2004) 1 CivCC 23=(2003) 6 KarLJ 409=(2003) 4 RCR (Civ) 15=(2003) ILR (Kar) 5067=(2003) 2 KCCR 1427 139 Sau. Devkabai Chudaman Patil vs. Santosh Supadu Patil (2013) 3 MhLJ 945=(2013) 2 AllMR 302=(2013) 3 BomCR 45 140 Y. Prabhakara Rao vs. P. S. Anil Kumar 2013 (5) ALD 319=2013 (6) ALT 19 141 Mohd Khadeer vs. K. Venkatesham 2014 (1) ALD 708=2014 (2) ALT 516 142 Kumudini Damodar Magar vs. Bhushan Damodar Magar (2004) 3 MhLJ 214 (Bom)=AIR 2004 Bom 397=(2004) 3 BomLR 783=(2004) 3 MhLJ 214 143 A, Ranga Reddy vs. A. Ram Reddy 2013 (4) ALD 1= 2014 (4) ALT 595

3. Examination of witness-duty of the court:

Chapter X of the Indian Evidence Act comprising of section 135 to 166 deals with broadly with the topic of examination of witnesses. The order, in which the witnesses are produced and examined, has to be regulated by the law and practice as provided in the Code of Civil Procedure. While recording evidence, the Judge before whom the trial is being conducted, enjoys wide and unrestricted powers and discretion and he is the master in so far as the overseeing whether the manner in which the trial is conducted is fair and is in accordance with law.

The basic principle of evidence is that it is only when the evidence of a witness is complete in all its respects, that another witness can be examined. Any application seeking the court to defer the cross examination of a particular witness, till the evidence of other witness of that other party is completed or till such time their affidavits of chief examination are filed is not referable to any provision of law. The request of the party that the chief examination of all the witnesses of the adverse party shall be completed and their cross examination must be undertaken latter cannot be permitted. 144 When the Court is permitting a party to cross examines his own witness if he makes a statement in chief examination resiling from his earlier statement, treating his as a hostile witness, such power of the court has to be exercised very carefully because, this is also a deviation from the order of the examination of witness. Before section 154 of Evidence Act, the earlier sections namely, sections 137 and 138 have to be followed and a combined reading of sections 137, 138 and 154 goes to show that a party cannot be called directly only for the purpose of cross examination.145

4. Permission under Rule 3-A can be granted if no prejudice is ensued to other side

Merely because a party did not reserve his right to come into witness box, before he examines his witnesses, he ipso facto does not lose his right to examine himself as a witness at a later stage. In view of nature of suit (permanent injunction in that case) though plaintiff seems to be guilty of laches, since other side can be compensated by costs for inconvenience caused and since rule of procedure are but handmaids of justice, plaintiff can be directed to pay costs to defendant341.

5. Chief-examination by way of affidavit (Or. XVIII R.4)

In every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party. If documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the order of the Court. (Sub-rule 1)

Normally, the affidavits will be sworn by the deponent either on oath or on affirmation before a Oath Officer, Advocate or Notary. But the Bombay High Court held that in view of special nature of the affidavits in lieu of chief examination, they shall be affirmed in the Court Registry before an officer of the Court alone and they should not be notarized. Where a witness is unable to come to Court, arrangements must be made for an Associate of the Court to go to the witness’s residence for the necessary affirmation

144 Nanduri Ramakrishna vs. Penakati Narasimha Murthy @ Avatharam (2013) 1 ALD 144, (2013) 1 ALT 708 145 Vattikonda V. Anantharama Rao S/o Sathaiah vs. Voruganti Narayana Rao S/o Pullaiah (2010) 2 ALD 426, (2010) 2 ALT 641, (2010) 4 CivCC 842

and every such affidavit shall bear at its head a statement that it is an affidavit under Order XVIII Rule 4 of the Code.146

Even though the chief examination can be presented in the form of affidavit under the new provision, it will not form part of the record unless the deponent enters the witness box and identifies the affidavit and the documents referred thereto.147

There was some difficulty when the documents are filed with the chief examination affidavit and the opposite parties cannot have opportunity to raise objection about their admissibility. The proviso to sub-rule (1) is to the effect that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents shall be subject to the orders of the Court. It is therefore, in view of the provision, not open to the trial court to mark documents mentioned in the affidavit straight away without giving opportunity to the other party to dispute their admissibility. Because, they are marked in the chief examination affidavit, the court cannot refuse to determine their admissibility. That marking of documents is not ‘marking as exhibits’ and the court has to fix a date to decide the admissibility judicially, after recording the affidavit in lieu of chief examination.148

With the new procedure of filing affidavit in lieu of chief examination, the courts face difficulty in identifying the priority of the witnesses and recording of their evidence one after the other. The priority now comes to be decided only at the time of cross examination of the witness.149

Once the witness tenders affidavit as to examination in chief and is cross examined by the other side, there is no provision either in the Evidence Act or in the Code of Civil Procedure which permits the filing of an additional affidavit-in-chief. According to Rule 4 (2) it is clear that except chief examination, the cross examination and re-examination cannot be made by filing an affidavit. There is absolutely no procedure laying down for acceptance of an additional affidavit.150

The affidavit in lieu of chief examination duly attested before an advocate other than the advocate appearing for the party on whose behalf the affidavit is filed is in proper form it cannot be rejected. If there is any defect in it, the party may be permitted to file another affidavit supplementing the original affidavit and the defective affidavit cannot be allowed to be corrected not is liable to be eschewed from the record of the proceedings. If once the affidavit become part of the record, alteration or substitution thereof would be nothing but alteration of the chief examination itself and it is not permissible.151

There is no provision in the Code or any other law for returning any affidavit and substituting the same by another. If any factual error is crept in the chief examination affidavit, it is open to the party concerned to get the witness re examined after cross examination is over.152 The expunction of a portion of the evidence is not permissible and the application raising any objection in that respect filed by either

146 Anita Tukaram Bohane vs. Desmond A D’Souza, Bombay High Court dated 3.8.2016; source: https://indiankanoon.org/doc/41262749/ 147 Vasantha Vithoba Dudhe vs. Maroti S/o Vithoba Dudhe (2009) 3 AllMR 796=(2009) 3 MhLJ 616; Bank of India vs. Allibhoy Mohammed AIR 2008 Bom 81=(2008) 5 BomCR 847=(2008) 4 AllMR 808 148 B. V. Ramana Reddy vs. Ceylon and India General Mission Church, Hindupur 2015 (2) ALD 183 149T. S. Benarjee vs. Jannu Ruthamma 2008 (5) ALD 107=2008 (4) ALT 786 150 Bishnupada Halder vs. Ananta Kumar Naskar (2010) 4 CHN 256 (Cal) 151 Mohammed Abdul Ahmad vs. Mohammed Abdul Gafoor @ Ahmed 2013 (1) ALD 137=2013 (3) ALT 795 152 Sk. Sayed vs. Sk. Mukhtar (2007) Supp2 OLR 1046 (Ori)

of the parties is to be kept pending for consideration at the time of writing the judgment.153Similarly when any inadmissible statement is made in the affidavit of chief examination, the same can be question and avoided of its relevance and admissibility at final stage and should not be out rightly rejected by the court.154Where there are averments in the chief examination affidavit beyond the pleadings, they are subject to admissibility and reliability and would be determinable on the basis of the cross examination of that witness. The Affidavit cannot be struck off at the threshold on the ground of it containing averments beyond the pleadings.155

The procedure of filing affidavit in lieu of chief examination is applicable to Rent Control Proceedings also.156 Same procedure is applicable to the proceedings under Land Reforms Act before the Land Reforms Tribunal157and in the proceedings before Motor Accidents Claims Tribunal158

6. Recording of evidence mechanically

Order XVIII Rule 4 (3) provides for recording evidence either by writing or mechanically in the presence of a Judge. Direct typing on a type-writer or a computer is a mechanical process well known. Audio-Video Link is another kind of mechanical process where the party is present on the screen and there is a mechanical divisor recording the evidence, in the light of development of technology. In this process of recording evidence, the Court has to take sufficient safeguards as follows:159

1. Before a witness is examined in terms of the audio-video link, the witness has to file an affidavit or an undertaking duly verified before a Notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. This is called ‘identification affidavit’.

2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.

3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.

4. The witness should not plead any inconvenience on account of time difference between India and other Country, say, USA.

5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.

153 Mustaque Ahmed Khan & others vs. Mahammad Nasim & others 2011 91) CLJ 455 (Cal) 154 Chhinder Singh vs. Charan Kau (2015) 3 LawHerald 2670 (P&H) 155 Sukhwinder Singh vs. Col Bhupinder Pal Singh (2015) 4 LawHerald 2977 (P&H) 156 Naveen Kamal Johar vs. Madanlal Agarwal 2013 (5) ALD 57=2013 (6) ALT 14 157 B. N. Nagarajan vs. Venkaramanappa (2013) 3 KCCR 1888 (Kar) (DB) 158 New India Assurance Co vs. Richa Singh Katiyar (2011) 2 CCR (All) 1087 159 twentieth Century Fox Film vs. NRI Film Production AIR 2003 Karn 148

6. The Judge is to record such remarks as is material regarding the demur of the witness while on the screen.

7. The Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.

8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.

9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certify to this effect.

10. The Judge may also impose such other conditions as are necessary in a given set of facts.

11. The expenses and the arrangements are to be borne by the applicant who wants this facility.

The observations of the Supreme Court also may be seen additionally for the above purpose.160

1. An Officer has to be deputed either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person the room where the witness is sitting whilst the evidence is being recorded. That Officer will ensure that the witness is not coached/tutored/prompted.

2. It would be advisable, though not necessary, that the witness be asked to give evidence in a room n the Consulate/Embassy.

3. If on reading the evidence the court finds that the witness has perjured himself, just like any other evidence on commission, the Court will ignore or disbelieve the evidence.

4. In cases where evidence is recorded on commission and by the time it is read in Court the witness have given evidence in a court in India and that then he gone away abroad, the court would not have been able to take any action in perjury as by the time the evidence was considered and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court. Even in those cases also, the Court could only ignore or disbelieve the evidence of such witness.

Calcutta High Court161 further observed that the witness, whose evidence was recorded on audio-visual link, may put his digital signature, if available, and it will be obtained immediately after day’s deposition.

7. Cross-examination

It may be taken down either by the Court or by the Commissioner appointed for that purpose. The Court may while appointing a commission consider taking into account such relevant factors as it thinks 160 State of Maharashtra vs. Praful B. Desai AIR 2003 SC 2053=(2003) 4 SCC 601=2003 CrLJ 2033=(2003) 3 Scale 554=(2003) 3 JT 382=(2003) 3 Supreme 19=(2003) 3 JLJR (SC) 110=(2003) 2 CCR (SC) 28=(2003) 2 CCR (SC) 28=(2003) 1 JCC 551=(2003) 2 Crimes (SC) 237 161 Amitabh Bagchi vs. Ena Bagchi AIR 2005 Cal 11=(2004) 3 CalLT 263=(2004) 1 HindLR 601=(2004) 2 IC 778

fit. (Sub-rule 2); The Court or the Commissioner shall record evidence either in writing or mechanically in the presence of the Judge or the Commissioner as the case may be. If it is recorded by the Commissioner, he shall return the evidence together with his report in writing signed by him to the Court; and the evidence taken under it shall form part the record of the suit. The Commissioner may record such remarks as he thinks material respecting the demeanour of any witness while under examination under sub-rule (4) of Rule 4 of Order 18. This means, the Commissioner cannot add in deposition recorded by him or in the report submitted to Court, any remark on the demeanour of the witness subsequently. He has to record any objection raised during the course of recording of evidence and it shall be decided by the Court at the time of hearing arguments.

Whether or not recording of cross examination by Commission is mandatory or only discretionary has been in question for some time. In Rule 4 (2) of Order XVIII the word used ‘shall’ but followed by ‘either by the Court or by the Commissioner’ makes it clear that ‘shall’ is synonymous with ‘may. That means, a discretion is given to the Court to chose either of the courses and when once such discretion has been given to the court , no strait-jacket formula can be laid down directing that the cross examination should not be before the court but it should only be before the Commissioner appointed by it. The view of full bench of Bombay High Court supports this view.162

While filing affidavit in lieu of chief examination, it is provided for appointment of Commissioner for cross examination of such witness. But this is discretionary and not as a matter of course. The reason is that cross examination of witness in court has its own significance. The court is required to apply its mind particularly in case of witnesses who depose about pleadings in the suit. Therefore, court has to record reasons as to why it has chosen to appoint a Commissioner for recording evidence of witness in cross examination. The order shall disclose application of mind. Mere reason that no prejudice is cause to the other party if witness is cross examined on commission is not sufficient.163

The provisions of Parsi Marriage and Divorce Act do not exclude either explicitly or by necessary implication the provisions of the CPC and in particular Order XVIII Rule 4 and therefore, the Parsi Chief Matrimonial Court, in its discretion, may permit evidence to be taken on commission and may institute such safeguards and measures as it thinks necessary for that purpose.164

8. Certain important questions relating to appointment of Commission under Rule 4 (2) of Order XVIII

Bombay High Court discussed certain questions and gave answers to them which are academically and procedurally important in regular practice.165

1. Whether the Court has power to appoint a Commissioner without the consent of parties?

Ans: The provision does not limit or restrict the power of the Court to appoint a Commissioner for recording evidence only when the parties consent to the same. It is for the court to consider the facts and

162 Harish Vithal Kulkarni vs. Pradeep Mahadev Sabnis and Sudha Mahadev Sabnis AIR 2010 Bom 178 (FB)=(2010) 1 BomCR 1=(2010) 1 AllMR 661=(2010) 1 MhLJ 402 163 Kodipaka Venkatesham vs. Pasula Narsamma 2005 (6) ALT 702=2005 (3) LS 279 164 Rohinton Panthaky vs. Armin R. Panthaky (2014) 3 BomCR 803=(2014) 3 MhLJ 803 165 Savitriben M. Sanghvi vs. Pankaj Champaklal Gandhi AIR 2008 Bom 144=(2008) 5 BomCR 355

circumstances in each case while deciding whether or not the evidence should be recorded by a commissioner.

2. What is procedure of fixing remuneration to the Commissioner?

Ans: Sub-rule 97) of rule 4 provides that the court may by general or special order fix the amount of remuneration payable to the Commissioner. The amount of remuneration will be fixed by the Court depending upon the factors like, the number of days meetings held, number of days adjournments were granted on the application of the parties, costs incurred by the commissioner. If any amount was incurred by him other than the sum fixed by the Court, the Commissioner shall approach the Court before proceeding further in the matter. If the sittings were held in the chamber of the Commissioner, he is entitled for the provision of this facility also.

3. How the remuneration and costs of the Commissioner have to be apportioned between the parties?

Ans: There is nothing in Order XVIII Rule 4 which restricts the Court’s discretion for apportioning the costs between the parties. It is left to the discretion of the Court to apportion the expenses between the parties as it deems just and proper. The apportionment of the costs of the commission will form a part of the final order in the proceedings. The parties would be entitled to enforce the order to recover the costs

4. What is the course open to Commissioner to recover remuneration due?

Ans: Having once availed the services of the Commissioner, it is not open to the parties to contend that they were unable to afford the costs of Commission. The court is not only entitled to but must determine the remuneration of the Commissioner and the costs of the Commission and to order payment thereof before the decision of the action in which the Commissioner was appointed.

5. Whether the Court has power to apportion the expenses of the commission tentatively?

Ans: Till the proceedings are decided finally, it is not possible to decide finally which of the parties ought to be made liable for the costs of the commission. So, the Court has to take into consideration various facts including the merits of the case and the conduct of the parties and then make an interim apportionment of the costs which would be subject to final orders at the hearing of the action. Various factors would have to be considered by the Court while fixing the interim apportionment pending the final determination thereof.

9. Courts’ power to examine the witness immediately

Under Rule 16(1) of Order 18, 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 application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in the manner provided in sub-rules (2) and (3). Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient of the day fixed for the examination shall be given to the parties. (Sub-rule 2); The evidence so taken shall be read over to the witness, and if he admits it to be correct, shall be signed by him and the Judge shall, if necessary correct the same and shall sign it and it then be read at any hearing of the suit.

10. Recalling of witness – A Discretionary Power of Court

Under Rule 17, the Court may at any stage of a suit recall any witness who has been examined and may (subject to law of evidence for the time being in force) put such questions to him as the Court thinks fit. When the plaintiff filed three applications with an objective to reopen the evidence and mark some documents after evidence is closed and the attempt is resisted by the defendant by filing the Court-affidavit, the trial Court cannot allow these applications just by passing a cryptic order without precisely stating the pleadings and the reasons for allowing the applications. Court is to pass an order with

reasons348. Whereas the power to recall and examine a witness is discretionary power of Court, if such discretion is exercised by trial Court on proper application of mind, it warrants no interference in revision349.

Rule 17 of Order XVIII is not intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. The provision is primarily intended to enable the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers.166 Even that also is exceptional. An application for recalling the witness whose chief examination and cross examination was already completed can be allowed only where the information sought to be brought now was not available to the party earlier and it is very essential for disposing the case and at the discretion of the court.167But the Court cannot invoke the power of recalling the witness under this Rule for the purpose of further cross examination by court itself.168 Order VII Rule 14 and Order XVIII Rule 17 operates in different fields and what the court has to see is whether party who is applying under Rule 17 of Order XVIII was prevented from filing those documents at the earliest point of time or not.169

The power of recalling the witness is discretionary and its exercise is fact based and no universal formula can be laid down. A court of law while dealing with such application has to adopt a pragmatic, common sense, purposeful, practical and justice oriented approach. While exercising the said discretion, the court is to be circumspect and adopt a caution approach. An important thing that to bear in mind is that an application for recalling witness under Order XVIII Rule 17 cannot be allowed by the Court ipso facto based on any false statement or omission to put some vital questions because, this Rule is an enabling provision for the convenience of the Court. A word ‘may’ employed in the provision of Rule 17 clearly postulates that the discretion has been given to the trial court. Further, the word may does not mean ‘shall’ and the court was not bound to recall witness unless there are compelling circumstances appearing to the satisfaction of the court. Liberal approach is prohibited in this process.

166 K. K. Velusamy vs. N. Palanisamy (2011) 11 SCC 275=(2011) 4 JT 38=(2011) 2 Supreme 667=(2011) 2 CivCC 823=(2011) 2 JLJR (SC) 152=(2011) 2 RCR (Civ) 875=(2011) 3 BBCJ (SC) 44=(2011) 5 CHN (SC) 28;Sanagala Srinivasulu vs. Ponnapoola Seetharamaiah 167 Vadiraj Naggappa Vernekar (Died) through LRs vs. Sharad Chand Prabhakar Gogate AIR 2009 SC 1604=(2009) 4 SCC 410=(2009) 4 Scale 90=(2009) 7 JT 202=2009 (3) ALT (SC) 25=(2009) 2 RCR (Civ) 508=(2009) 5 MhLJ (SC) 142=(2009) 5 LW (SC) 52=(2009) 4 MLJ (SC) 288=(2009) 3 SCJ 365=(2009) 5 BomCR (SC) 460=(2009) 2 CivCC 553=(2009) 1 RCR (Rent) 502=(2009) 3 CHN (SC) 221=(2009) 4 JCR (SC) 55 168 Mahadhan Real Estates Ltd vs. Anjali Real Estates Pvt Ltd (2007) 2 GoaLR 339; Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and others AIR 2003 Bom 293 169 Lakshmi Priya Exports (India) Pvt Ltd & Others vs. M/s Ramalingam Mill Ltd & anr

Therefore, a survey of judicial views seems that the power under the provisions of Order XVIII Rule 17 is to be sparingly exercised and in appropriate cases only and not as a general rule merely on the normal and general grounds and that is not the scheme and intention of Order XVIII Rule 17 CPC.

If the Court has once closed the evidence of the plaintiff since the plaintiff failed to produce evidence inspite of several adjournments, the plaintiff cannot ask the court to recall the witnesses under Order XVIII rule 17 CPC without filing separate application for recalling the order of closing his side of evidence.170Likewise, Rule 17 does not envisage recalling of the witness for the purpose of re-cross examination, or further cross examination or re-examination.171

Where the Court ordered consolidation of suits and much before that order in one of the suits witness were examined both in chief and cross, after consolidation, recalling the witnesses for cross examination should be given.172Where the document are with the plaintiff till the date of conclusion of trial and if he comes up with application to recall the witness at the time of arguments for the purpose of marking those documents to fill lacunae in his pleadings and evidence led by him, his application shall not be allowed even under Sec. 151 CPC.173However, the observation that Sec. 151 CPC cannot be used is not the absolute proposition. Sec. 151 cannot be routinely invoked for reopening evidence or recalling the witness.174There is no bar to invoke the inherent powers by the court in appropriate cases. 175The power under Rule 17 to recall any witness has to be sparingly used and not as a general rule merely on the ground that recall and re examination of witness would not cause any prejudice to the parties.176 At any rate, such application shall not allowed by invoking the power under Rule 17 of Order XVII enabling the party to fill up the lacunae in evidence of witness but only to be invoked to clear any ambiguity that may have arisen,177 nor to reopen the issues178

If the party is repeatedly making applications to recall witness to prove a document (audio cassette in this case) but never has done accordingly, it amounts to the deliberately delaying the proceedings and is guilty of abusing process of court.179

11. Recalling witness to make corrections in earlier deposition – uncalled for

The defendant filed application to recall DW1 for re-examination stating that some sentences in his deposition are at variance with what was stated by him. Deposition acquires its evidentiary value only when it is signed by the witness. Once witness has chosen to sign it, he is supposed to have been satisfied

170 Indu Devi vs. Kamla @Kamala Singh (2008) 2 PLJR 593 (Pat)=(2008) 2 BBCJ 55 171 Ashok Kr. Sahu & others vs. Buluichan (Md) (2012) 1 GauLT 62 172 Ram Rati vs. Mange Ram, AIR 2016 SC 1343=(2016) 3 Scale 219=2016 (3) ALD 162 (SC)=(2016) 2 CDR 334 (SC)=(2016) 115 ALR 880=2016 (5) CTC 555=2016(157) DRJ 7=2016 (2) JLJR 170=2016 (4) LW 447=2016 (2) PLJR 298=2016 (3) RLW 2328 (SC)=2016 (2) RCR (Civil) 464=2016 (131) RD 717 173 Bagai Construction through its Proprietor Lalit Bagai vs. Gupta Building Material store AIR 2013 SC 1849, (2013) 3 JT 192=(2013) 3 JCR (SC) 87=(2013) 1 OLR (SC) 1070=(2013) 2 JBCJ (SC) 346=(2013) 3 JCR (SC) 87=(2013) 2 JLJR (SC) 18=(2013) 2 BBCJ (SC) 448=(2013) 3 MLJ (SC) 185 174 Guduru Nirmala vs. Guduru Ashok Kumar 175 Anand vs. Govind (2012) 5 AllMR 228=(2012) 5 MhLJ 955=(2012) 6 BomCR 116 176 A. R. K. Raju S/o A. S. Raju vs. A. V. S. Raju S/o A. S. Raju 177 Shaik Gousiya Begum vs. Shaik Hussan 2014 (1) ALD 240=2014 (1) ALT 268 178 Herbert Irwin Pereira vs. Rudolph Pereira (2010) 2 BomCR 824=(2009) 6 AllMR 185 179 Shalini d/o Sharad Kirwai vs. Shankar Neelkantan Iyer (2012) 4 MhLJ 288=(2012) 5 AllMR 85

about its accuracy and he cannot be permitted to turn around and complain of any inaccuracy. Permitting correction of deposition at a later point of time is prone to take away importance of cross-examination. It may reflect on the capacity of Presiding Officer. If sentences in deposition are to be corrected, on the plea that it does not represent correct translation, many admissions or crucial sentences, which are found to be against interest of a particular party, can be overcome through this process. Such endeavours of parties shall be discouraged350.

12. Recalling a witness in the middle of cross-examination does not arise

When DW1 was being cross-examined, he made application to recall him for further chief examination to mark a document. That document intended to be marked through DW1 was not filed into Court within time stipulated. Question of marking document not received by Court, in chief examination of witness does not arise. In the middle of the cross examination a witness cannot be stopped for giving further chief examination. After cross-examination of witness is completed if party wants to examine him further in chief examination, he can seek permission of Court to further chief examination of witness as laid down by Section 138 of Evidence Act351.

13. Defendant who did not file written statement cannot let in evidence

Party who did not file written statement shall not be allowed to lead evidence but has a right to cross examine the witness of the plaintiffs relating to weakness of plaintiff’s case only without putting forth a positive defence352.

14. Court can permit voice recording of cross examination of witness

The High Court held that the trial Court has committed material irregularity in the exercise of its jurisdiction in holding that there is no specific provision to record the evidence of witness in cross-examination and his voice on tape. The provisions of Section 151 CPC read with Section 73 (2nd part) of the Evidence Act are available for such purpose. It is legitimate and lawful for the Court to invoke them to meet the above situation353.

15. Recording and interpretation of deposition:

In the appealable cases, the evidence of witness shall be taken down in the language of the court (i) in writing by or in the presence and under the personal direction and superintendence of the judge; or (ii) from the dictation of the Judge directly on a typewriter; or if the Judge so directs for reasons to be recorded, it may be recorded mechanically in the language of the Court in the presence of the Judge. (Order XVIII Rule 5)

Order XVIII rule 6 mandates that where the evidence is taken down in the language different from the language in which it is given and the witness does not understand the language in which it is taken down, the evince as taken down in writing shall be interpreted to him in the language in which it is given by the witness.

In cases where evidence is taken down under sec. 138 of the Code, it shall be in the form prescribed by Rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. (Order XVIIII Rule 7)

Where the evidence is not recorded by the Judge in writing or from his diction in the open court or recorded mechanically in his presence, the Judge is bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes and such memorandum shall be written and signed by the Judge and it shall form part of the record. (Order XVIII Rule 8)

A witness may be or not be party; yet, the same rule under Rule 6 applies equally. The necessity for a certificate as required under Rules 5 and 6 of the Order XVIII in the case of evidence recorded by a Judge is based on the fact that a Judge who recorded the evidence in court could not be called in evidence in any other proceedings where that evidence is sought to be relied on. It was also put on the ground that the public policy requires that were the evidence of a witness is put against him in different proceedings he should have had an opportunity of knowing that the evidence given by him has been correctly recorded.

An inadvertent omission by the judge who had recorded the evidence of witnesses may not attract the presumption under Sec. 80 of the Evidence Act but, it can be read in the evidence of the suit because, it is admitted by the parties as a matter of fact the deposition was recorded by the Judge who was retired. The High Court however directed the trial court to summon the retired judge and get the depositions signed and then read them in the suit for disposal according to law.180

16. What is language of Court?

It is stated in Sec. 137 of the Code in the following terms:

(1) The language which, on the commencement of the Code is the language of any Court subordinate to a High Court shall continue to be the language of such subordinate court until the State Government otherwise directs;

(2) The State Government may declare what shall be language of any such Court and in what character application to and proceedings in such courts shall be written; and

(3) Where the Code requires or allows anything other than the recording of evidence to be done in writing in any such Court, such writing may be in English but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as thinks fit in respect of the payment of the costs of such translation.

Sub-section (3) of sec. 137 refers to the writings other than the recording of evidence. Pleadings and applications may be in English subject to a translation being supplied to the other side where it is necessary. Sub-section (3) came up for consideration before a Division Bench of AP High Court. It is held that even after the issue of G.O. Ms. No. 1295, Home (Courts-A) department dated 16/07/1962 of Government of AP., the subordinate courts can entertain pleadings and applications in the English

180 Khaja Begum vs. Abdul Hameed (1967) 2 AndhWR 66

language subject to a translation being supplied to the other side, where necessary.181Madras High Court held that a judgement written by a District Munsiff in Tamil language is nullity.182

The State Government of Andhra Pradesh in G.O. Ms. No. 485 dated 29.3.1974 notified that English and Telugu; or English, Telugu and Urdu are languages in different District of Andhra Pradesh. For example, English and Telugu are the languages notified as the languages of the Courts in Krishna District. Though that notification was issued under Sec. 272 of Code of Criminal Procedure, the language of the section is clear that the languages notified in exercise of the power under the said section would be the language of the Court for all the purposes of the Code. The AP High Court while considering this notification held that no further notification declaring Telugu language as the language in which the judgment can be written required and so, judgements of the Criminal Courts in the State can write judgement in Telugu.183

Sec. 138 of the CPC is an exception to sec. 137, whereunder, the High Court has the power to require evidence to be recorded in English, by a notification in the Official Gazette, with respect to any Judge specified in the notification, in cases in which appeal is allowed and shall be taken down by him in English.

27.1. Oath to be administered by the Presiding Officer invariably

Every witness shall be administered oath by the presiding officer of the Court, other than Supreme Court and High Court according to Section 6(2) of Oaths Act, 1969. Most of the Presiding Officers of the Subordinate Courts are entrusting this sanctimonious duty to the Bench Clerk or the Office Subordinates in gross violation of the statutory directive. This should be avoided.

17. No oath to be administered to a child witness

According to the proviso to sub-section (1) of Section 4 of Oaths Act, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the provisions relating to administering oath or affirmation shall not apply to such witness; but in any such case absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

18. For giving oath to child witness, Court must comprehend that the child must understand sanctity of oath

Competency of a person to be a witness is one thing and his eligibility to testify on oath is another. Under Section 118 of Evidence Act, all persons shall be competent to testify unless the Court considers that they

are prevented from understanding the questions put to them or from giving rational answers to those questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. It is therefore obvious that a child 181 Syed Alam vs. Abdul Khader Qureshi AIR 1967 AP 42 (DB)=(1966) 1 ALT 1=(1`966) 1 AndhWR 175 182 Ramayee and others vs. Muniyandi Konar and others (1978) 2 MLJ 442 183 Yelchuri Manohar vs. State of AP 2005 (2) ALD (Cri) 758 (DB)=2005 (3) ALT (Cri) 386

who can understand the questions put to him or her and who can give rational answers to the same, is a competent witness. Giving oath to such a child witness, before recording his evidence, however, depends

upon the question whether he/she understands the sanctity of oath359

19. Child witness – Preliminary examination by Court

There are five factors for determining competency of a child witness and absence of any of them may make the child incompetent to testify. They are-184

An understanding the obligation to speak the truth in the Court; The mental capacity at the time of the occurrence concerning which he is to testify, to receive an

accurate impression of it; A memory sufficient to retain an independent recollection of the occurrence; The capacity to express in words his memory of the occurrence; and The capacity to understand simply the questions about the occurrence;

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184 The State of Washington vs. Harold Allen 424 P.2d 1021, 70 Wash. 2d 690 (Source: https://www.courtlistener.com