Report No. 27
26. Documents to be filed by defendant.-Order VII, rule 14 provides that where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented. Where the plaintiff relies on any other documents (whether in his possession or power or not), as evidence in support of his claim, he has to enter such documents in a list to be added or annexed to the plaint. The Fourteenth Report1 recommended, that a similar provision should be made in the case of a defendant. We feel, that the distinction between a document upon which the plaintiff relies cannot properly be made in the case of a written statement.
The only manner in which such a distinction can be made is between documents on which a defendant bases his defence and other documents on which he relies as evidence in support of his defence. In our opinion such a distinction would be unrealistic and impractical. A written statement merely answers the claim made in the plaint. In practice, it would be difficult to distinguish between documents on which the defence "is based" from other documents of purely evidentiary value. We, however, think2 that a defendant should enter in a list to be added or annexed to the written statement all documents on which he relies in support of his defence.
2. 14th Report, Vol. I.
3. Appendix 1, Order 8, rule 1.
27. Framing of issues.-The framing of issues is an important step in the trial of a suit. Sufficient attention is often not paid to this matter. The result is, that in most cases some unnecessary issues are raised which delay the completion of the trial. The framing of issues should be done carefully after a detailed consideration of the pleadings and the examination of the parties, and the other materials referred to in Order XIV, rule 1(5) and rules 3 and 4. Even where what are known as "consent issues" are put in by the Advocates of the parties, the presiding officer should satisfy himself that they--
(i) bring out all the points in controversy; and
(ii) raise no unnecessary issues which would delay the trial. This could be achieved by a strict observance of the provisions of Order XIV.
28. Summons for directions and "pre-trial conferences" considered.-Before the issues are framed, some kind of a weeding out process seems to be necessary. This is done both in England and in America. In England the object is achieved by what is known as summons for directions1. The original side rules of High Courts also contain such a provision2. The object of a summons for directions is a general stock-taking of the case with a view to arriving at the essentials of the dispute. In America the same object is achieved by what are known as "pre-trial conferences". The relevant rule relating to pre-trial conferences is in the following terms3:
"In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider-
(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admission of fact and of documents which will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses;
(5) the advisability of a preliminary reference of issues to a master for findings to be used in evidence when the trial is to be by jury;
(6) such other matters as may aid in the disposition of the action."
In America, pre-trial conferences have resulted in a large number of arrears being wiped out4. The Law Commission has, in the Fourteenth Report,5 rejected the proposal for pre-trial conferences. It was of the opinion, that Order X which provides for the examination of parties by the court, can serve the same purpose. We generally agree with this view.
1. Order 25, rules 1 to 4, R.S.C. (Revisions), 1962.
2. See, e.g. Bombay High Court Original Side Rules (1957), rule 147.
3. Rules of Civil Procedure for the United States District Courts, Rule 16 (14th Report, Vol. I).
4. See articles in the Annual Magazine of the American Judicature Society, October-December 1956, particularly the one under the caption " Calendar Decongestion in the Southern Districts of New York" by Irwing R. Kaufman.
5. 14th Report, Vol. I.
29. Examination under Order X.-The object of the examination under Order X is to ascertain precisely the matters which are in dispute between the parties. If a proper use is made of the provisions contained in this Order, the Judge will, at an early stage of the suit, be in a position to sift the chaff from the grain, and to pin-point his attention on the matters on which the parties are at variance. A complete grasp of the case at an early stage of the suit will enable the Judge, when the suit comes up for hearing, to dispose it of expeditiously.
It will enable him to narrow down the issues between the parties, and eliminate the need for recording formal or irrelevant evidence. The parties to the suit can also benefit by the examination under Order X. After such examination, they will know exactly which of their contentions have survived the examination and what they have to prove in support of their case. The Law Commission in its Fourteenth Report1, therefore, rightly stressed the importance of the provisions of Order X.
Under Order X, however, it is discretionary for the Court to examine the parties. In practice the salutary provisions of this Order are rarely used. The Courts often get over these provisions by observing, that since the pleadings are clear, it is not necessary to examine the parties. We think, that in order that the provisions of Order X may be effective and achieve the object in view, the examination of parties by the Court should be made mandatory. The Law should also briefly indicate the purpose for which the parties should be examined. We recommend that Order X should be amended on these lines2.
1. 14th Report, Vol. I.
2. See Appendix I, Order 10, rule 2.
30. Delay during trial.-Delay during trial is often caused by unnecessary adjournments.