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Report No. 77

6.8. Evidence not to be taken in instalments.-

Another salutary practice which must be adhered to while recording evidence is to complete the entire evidence and to avoid recording of evidence of a party in a case in in stalments. According1 to clause (a) of the proviso to sub-rule (2) of rule 1 of Order XVI of the Code of Civil Procedure, when the bearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds that, for exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

As things are at present, the practice prevailing in most of the courts is to record evidence in instalments. Such a practice was condemned by the Law Commission in its Fourteenth Report in the following words2:

"It has also been brought to our notice that in many States the provisions of Order XVII, rule 1, are disregarded and the hearing of a case once begun is not continued from day-to-day. This happens in spite of the instructions to the contrary laid down by all the High Courts for the guidance of subordinate courts. Our examination of the order sheet of a large number of suits in the courts of munsifs and subordinate judges in West Bengal and Uttar Pradesh showed the utter confusion which prevails in the matter of fixing the dates of hearing.

Day after day the cases were adjourned either because the lawyers are engaged elsewhere or because the court is otherwise busy. Indeed, so chaotic were the files, that cases were often adjourned to a future date only for the purpose of fixing the next date of hearing. This difficulty, in our opinion, is created by a total disregard of the provisions of Order XVII, rule 1 and a failure to appreciate that it contemplates the continued hearing of a case, once it has started, from day-to-day until it is finished. In various States we found the subordinate judiciary acting as if they understood the Code to provide the contrary.

They seemed to think that interrupted bearings should be the rule and a day-to-day hearing the exception. We found in some States the cross-examination of a witness spread over several hearings with breaks running in some cases into months. It seemed to be the invariable practice to adjourn the case after the closing of the plaintiff's evidence and before the starting of the defendants evidence. It would also appear to be common practice to adjourn the case after the recording of evidence is completed to enable the counsel to prepare their arguments.

A further adjournment invariably takes place after the arguments are closed for the judge to deliver his judgment. It needs to be emphasised that every step in this method of what may be described as the hearing of a suit through a series of adjournments, is contrary to the Code. There is no reason why all the witnesses in the case whether those of the plaintiff or of the defendant should not be examined in a series, the evidence followed immediately by arguments of counsel, and, in most cases, the judgment following the close of the arguments."

We fully agree with the above observations.

1. Order 17, rule 1(2), Proviso, CPC.

2. Fourteenth Report, Vol. 1.



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