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Report No. 128

Travelling expenses, etc., of Litigants and Witnesses

2.11. The present situation is that the courts of lowest jurisdiction are generally stationed at the headquarters of Taluka or Tehsil depending upon the inflow of work. Occasionally, a court of lowest jurisdiction is set up with jurisdiction over 2 to 3 Talukas/Tehsils and the litigants, even from the area within the jurisdiction of such court in search of justice, will have to travel to the headquarters where the court is set up. Not only he litigants will have to travel to the court very often but when the suit reaches the stage of recording evidence, witnesses have to be taken from the village to the court and transported back also to be provided some snack and food.

This would entail heavy cost. Experience shows that after the suit reaches the stage of hearing and the witnesses are brought, the suit is adjourned on numerous occasions entailing the liability to bring witnesses repeatedly to the court. Not only that but even after the cross-examination of the witnesses has started, it is not completed by continuous hearing of the suit but the suit may be adjourned with the obligation of the witness under cross-examination to appear as many times in the court as the court would expect his presence or till such time as it is recorded that the examination is complete.

There is one notorious case in the court at Ahmedabad where the adjourned cross-examination covered a period of a decade. Unless the witness is summoned and the amount for procuring his presence is deposited, as required by rule 3 of Order 16, the expenses incurred in bringing witnesses to the court would not the included in the taxed costs, rule 1A of Order 16 permits the party to keep witnesses present without obtaining the assistance of the court for procuring their presence and if they are kept present, the court is under an obligation to examine them unless it is said that the evidence of the witness is irrelevant or the exercise is for vexation or delay.1

And there is a peculiar tendency among litigants in our country to bring a number of witnesses even where parol evidence has little or no relevance and this invisible component of cost of litigation is sometimes back breaking. There is some scope for reducing cost under this head.

1. Mange Ram v. Brij Mohan, (1983) 4 SCC 36.

2.12. Parol evidence has its relevance where parties are at variance on a fact situation which cannot be established by documentary evidence, such as suits based on easement. Whether a particular passage was in existence and used for a passage for water was in existence and used over the statutory period would entail examination of witnesses who would have intimate knowledge of the existence of passage or water passage, as the case may be. Cases are not unknown where a large number of witnesses on either side are called and examined.

Though the Evidence Act does not prescribe numerical strength of witnesses to prove a certain fact, yet, in the case of proof of execution of a document required by law to be attested, it shall be obligatory upon the person offering the document in evidence to at least examine one attesting witness for the purpose of proof of execution.1 The proviso to section 68 would make it incumbent upon a person offering to prove a will to examine at least one attesting witness to prove the same but in all other cases if the document is registered according to the provisions of the Indian Registration Act, the rigour of section 68 would be lessened in that the examination of an attesting witness will not be incumbent upon the person offering such document in evidence.

The tendency, therefore, to examine a large number of witnesses to prove a given fact requires to be curbed but till that is done, there is a way out to reduce cost of litigation under this head. Where once the witness is called, his examination must be completed on the same day. This can be achieved by two simple methods.

1. Indian Evidence Act, 1872, section 6.

2.13. If the court has set down number of suits for recording evidence on a given day and the Court finds itself unable to deal with all witnesses. The court should appoint a lawyer as a Commissioner directing him to record evidence of witnesses of those who are present in the court. This practice is followed in the subordinate courts in the State of Madhya Pradesh. This practice requires to be universally followed. Once the witness has come in and the evidence is recorded, he/she may not be called in again and any further investment on procuring witnesses will he saved. Needless to say that in the circumstances herein mentioned, the costs of commissioner shall by the State.

2.14. Law Commission has, however, another alternative suggestion which it has already made in this behalf. If Gram Nyayalayas are set up as recommended by it, it is incumbent upon such Gram Nyayalayas to visit the site of dispute which by itself would offer a solution. In a number of cases emanating from rural areas and reaching the courts, the dispute centres round a road or passage to the house or field to be used by men, cart and cattle. These disputes are embroiled in technical rules and complex legal formulations involving foreign decisions which have modulated the law.

To avoid all this complicated and complex approach to a simple dispute, a Gram Nyayalaya, on receipt of a dispute of this nature, would assemble, on a date to be notified in advance, at the site of dispute, witnesses will be from the same locality, they will be present, they can be briefly examined, and the dispute can be resolved as per the decision of the Gram Nyayalaya. This would totally eliminate expenses on transport and snack charges for witnesses.

It will be a saving in time and money both.1 When it comes to urban litigation, the problem is not so complex because, the courts are in the city and the witnesses are in the city and they can be kept present without such investment. Therefore, if these two suggestions herein made are implemented, expenses on transport and snacks of witnesses as a component of cost of litigation will be either wholly eliminated or reduced to such a level as to become bearable.

1. LCI, 114th Report on Gram Nyayalaya, para. 6.6.

2.15. In this context, attention must be drawn to Order 17 of the Code of Civil Procedure, 1976, which empowers the court not to grant frivolous adjournments and in any case on the ground of the convenience of lawyer. Provision of Order 17 should be scrupulously followed and this would further entail reduction in cost under this head.

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