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Report No. 14

41. Position in India (Provisions of Civil Procedure Code).-

As to the introduction of similar provisions for a similar procedure in India the witnesses before us have pointed out that the practice already obtains in a modified form under the provisions relating to the examination of parties and discovery and inspection under Orders X, XI and XII of the Civil Procedure Code. The provisions for the amendment of pleadings are found in Order VI, rules 16 and 17 of the Civil Procedure Code. Rule 16 give power to the Court at any stage of the proceedings to order to be struck out or amended any matter in any pleading which may be (1) unnecessary, (2) scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.

Similarly the duty of framing precise issues is cast upon the court under the provisions of Order XIV and if these issues are framed after the preliminary examination of the parties and the reading of pleadings as already suggested, it would no doubt lead to a considerable simplification of the issues. Thus it can be said that the rules of the Civil Procedure Code amply provide for all the matters enumerated in rule 16 of the Rules of the Civil Procedure for the United States District Courts.

42. Introduction unnecessary.-

An elaborate pre-trial conference of the nature contemplated above would, it was said, be needless waste of time. The same purpose could well be achieved by an examination of the parties under Order X of the Civil Procedure Code. We were informed by a senior Judge of the Madras High Court that the method of a pre-trial conference had been tried on the Original Side without much success.

Conditions in our country, we think, are not yet ripe for the introduction of such an innovation which would throw upon the court the responsibility not only of examining the parties and settling the issues, but also of considering what documents need be produced or proved or of considering the facts necessary to be proved and the manner of their proof. The object of the pre-trial system is to define the scope of the dispute and ascertain the true issues which arise. Such a definition and clarification does in many cases tend to bring about a compromise. Order X of the Code of Civil Procedure already provides for the examination of the parties by the court before the framing of the issues.

The object of such an examination is to get admission or denials of the allegations of fact made in the pleadings. The examination will have the effect of clearly defining and limiting the scope of the inquiry and focusing attention on the real points in dispute. If these provisions are carefully followed, they should result in bringing about the salutary consequences which are said to flow from a pre-trial conference. We do not therefore think it desirable to incorporate in our procedural laws the elaborate system of pre-trial conferences which obtains in some other countries.

Attendance of witnesses

43. Summonses to witnesses.-

We shall next deal with the summoning and attendance of witnesses. Under the Code, parties are entitled at any time after the institution of the suit to obtain by an application to the court summonses to persons whose attendance is required either to give evidence or to produce documents. This is generally done after the issues have been framed and matters relating to discovery and inspection have been completed. In practice, the application for summoning the witnesses must be made at the earliest opportunity so that sufficient time may be left for service before the date fixed for hearing of the suit.

44. Non-service of witness summons.-

Considerable delays arise from a failure to serve summonses on witnesses, even when the parties have filed their applications for witness summonses in time and paid the travelling and other expenses as required by law. The causes of these delays are, generally speaking, the same as those which lead to delays in the service of processes on the defendants. Measures similar to those indicated earlier have therefore to be adopted to remove these delays.

45. Delays in applying for summons (Laxity of presiding officers) (Witness lists to be filed).-

There is a large body of opinion that parties are not sufficiently diligent in applying for the issue of summonses for the attendance of witnesses. Sometimes a party who for some reason is not interested in the suit being heard on a particular date deliberately applied for issuing summonses to witnesses at a late stage when the chance of effective service on the witness for his attendance has become remote. The summons is in such cases returned unserved for want of sufficient time; or the witness having been given very short notice is unable to attend the court. The case has therefore to be adjourned to a future date. In such cases, summonses may be issued at the risk of the party.

If service is not effected or the witness is unable to attend because the summonses were not applied for and process fees not paid within a reasonable time for service and attendance, the court will be justified in refusing to adjourn the hearing on the ground of the nonĀ­appearance of witnesses. Unfortunately, considerable laxity prevails in this matter which results in frequent adjournments and considerable delays in the disposal of suits. We suggest that it should be provided by an amendment of Order XVI, rules 1 and 2 that the list of witnesses to be summoned should be filed, as far as possible, within a time limit not exceeding thirty days from the date of the framing of the issues.

The date of hearing may be fixed only after such a list is filed and having regard to the time that may be reasonably required for summoning the witnesses and in consultation with the lawyers. The Rules of almost all the High Courts contain clear instructions in this matter for the guidance of the subordinate courts. The presiding officers should rigidly follow these instructions. The High Courts and the district judges should, from time to time, draw their attention to the Rules and insist on their being followed.

46. Non-attendances of witnesses and penalties.-

In regard to witnesses who wilfully avoid service of summons or attendance after service, the court has ample powers under section 32 and Order XVI, rules 10 to 13 of the Code. Under section 32, the attendance of a witness to whom a summons has been issued may be compelled by (a) the issue of a warrant for his arrest, (b) the attachment and sale of his property, (c) a fine not exceeding Rs. 500 and (d) ordering him to furnish security for his appearance or in default committing him to civil prison.

The procedure to be followed in the case of a witness who fails to comply with the court's process is laid down in Order XVI, rules 10 to 13. Under rule 12 the court has power in certain cases to impose a fine upto Rs. 500 upon a witness who has failed to appear or failed to satisfy the court that he had a lawful cause for his absence. These powers are, however, rarely exercised. parties are for obvious reasons unwilling to move the court for exercising these powers against their own witnesses.

The Civil Justice Committee recommended that in such cases the parties should be offered the alternative of either applying for a coercive process against their defaulting witness or withdraw the witness if they refuse to apply for such process. They also suggested that in flagrant instances the courts should on their own initiative take action against recalcitrant witnesses and met out exemplary punishment for the contempt of the court's process.

47. Non-examination of witnesses.-

Frequently, however, wilful default on the part of the witnesses is not the cause of their failure to attend. Very often parties omit to make an application for summoning their witnesses because the heavy congestion of the court's file makes it unlikely that the case will be heard or the date fixed for hearing and the party wants to avoid the unnecessary expenditure of summoning a large number of witnesses. This question will be discussed in detail when we deal with the hearing of the suit.

Discourtesy to witnesses (Better treatment necessary).- Not infrequently a witness is treated with scant respect not only by the cross-examining lawyer but even by the presiding officer. There is a natural tendency on the part of witnesses to avoid the ordeal of a lengthy and sometimes unpleasant and undignified cross-examination which is so frequent a characteristic of the subordinate courts. Unnecessary rebukes, unfavourable comments upon his demeanour and ridicule in open court if the witness is sometimes driven to give an unintelligible answer, are not uncommon.

In our view this if one of the principal reason why witnesses shun the courts of law and avoid having to give evidence. We suggest that the High Courts should draw the attention of all presiding officers to the necessity of maintaining proper decorum in court and ensuring proper treatment of parties and their witnesses whatever their social status. They should be treated with courtesy and dignity and not permitted to be brow-beaten or insulted in court.

48. parties producing their witnesses without summons.-

We invited opinion on a proposal that the parties themselves should be initially responsible for procuring the attendance of their witnesses. The opinion is almost evenly divided. A section expressed the view that the parties should be made responsible for bringing their witnesses to court because they would be in a better position to procure their attendance and that summonses should be issued only in very special cases.

Others took the view that such a course would lead to delays and bargaining between parties and their witnesses and that in all cases, the court must help the party in enforcing the attendance of his witnesses. Some High Courts have amended their rules so as to enable the parties in the first instance to bring their witnesses by themselves undertaking the responsibility of serving the summonses. A similar enabling provision has now been made in the Civil Procedure Code (rule 1A of Order XVI). The new rule is:-

"Where any party to the suit has, at any time on or before the day fixed for the hearing of evidence, filed in the Court a list of persons either for giving evidence or for producing documents, the party may, without applying for summons under rule 1, bring any such person, whose name appears in the list,. to give evidence or to produce documents".

In Allahabad, rule 8 his been amended by providing that the witness summons may by leave of the Court be served by the party or his agent applying for the same by personal service, and failing such service it shall be served in the usual manner. A similar amendment has also been made in Bihar, Orissa and Madras. According to these amendments a party may, if he so chooses, obtain the leave of the court to effect service of summons personally upon his witnesses. In

Calcutta and Assam, on the other hand, it appears that the party is in the first instance bound to procure the attendance of his own witnesses except where it appears to the court that summons should be served by the court in the usual manner. The Calcutta rule therefore introduces the general practice of leaving the parties to procure attendance of their witnesses, summonses being issued by the court only in special cases, if a party is prepared to take the responsibility of keeping his own witnesses present in court or to serve the summonses upon them personally, there will of course be no question of service through court.

49. Variety of witnesses brought without summons doubted.-

It is necessary in this connection to point out a difficulty which confronts a party who is prepared to bring his witnesses without summonses being issued. Generally, and particularly in the rural areas, a witness who appears to support the case of a party without being summoned through the court, is looked upon with suspicion and his detachment and impartiality are not considered above question. The general practice of the cross-examiner in the subordinate courts is to start his cross-examination with the question whether or not he appeared in response to a summons.

This practice acts as a deterrent to the parties making any attempt to bring their witness and leads to the witnesses insisting upon a summons being served before consenting to give their evidence. If therefore it is desired to amend the rules by making it obligatory upon the parties in the first instance to bring their own witnesses, it should also be understood that the impartiality of a witness who has come without a summons should not, on that account, be suspect.

Subject to this safeguard, we are of the view that the parties should in the first instance be made responsible to procure the attendance of their witnesses either by bringing them without summonses or by taking up the task of serving the summonses upon them. We therefore recommend an amendment of the Code on the lines of the Calcutta Rule providing the safeguard mentioned above. It should also be provided that when the service of summons is arranged by the party, the full process fees should not be payable by the party as is insisted upon in some States.

50. Filing of witness list.-

The Civil Justice Committee considered a proposal that a rule should be made whereby parties may be required to file lists of witnesses on a certain date and be prevented from calling witnesses other than those mentioned in the lists given by them, save in exceptional circumstances. Such a rule would, it was thought, interfere with the inherent right of the parties to call as many witnesses as they desired at any time. It was also thought that if such lists were filed, an opportunity would be given to the other side, who would know the names of witnesses, to persuade the witnesses either not to give evidence or to give evidence against the party who has called them. The Committee rightly rejected the first view, pointing out that there was no inherent right in the parties to call as many witnesses as it chose.

The Committee however felt that it was by no means uncommon for the opposite party, as soon as he knew that certain witnesses were being called against him, to use all means in his power to dissuade them from assisting his opponent. The Committee nevertheless took the view that it was better on the whole, that each party should know what the evidence of the other side would be and that the large majority of the litigants were not dishonest. They thought that there would be an attempt to tamper with the witnesses only in a minority of cases. We see no reason to take a different view.

However, not unoften, a witness named in the list may for some reason not be available to the party calling him. In such cases a party may desire to examine another witness who might be available but whose name might not have been included in the list of witnesses. A rigid rule, such as the one suggested, would deprive the party of the opportunity of leading such evidence. It was therefore urged that the right of a party to call a witness at any time should not be restricted. It should be for the court to decide whether a witness whose name is not included in the list should be allowed to be examined or whether a case should be adjourned to enable a party to call such a witness.

Moreover, rigidity in this matter may result in a party conducting the cross-examination of the opponent's witnesses in such a way as to necessitate the examination of additional witnesses and this would be denied to him under the proposed rule. On a careful consideration of all these aspects, therefore, we do not recommend the acceptance of this proposal. We should leave it to the good sense of the courts to decide every application for leading additional evidence on its own merits. The Court should however in all cases be required to ask the party to give an explanation why the evidence of witnesses other than those mentioned in the list is required.

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