Report No. 14
66. Unjustified adjournments (Need for strictness).-
Unfortunately, in practice even after the case has reached the stage of trial, its progress is impeded by frequent adjournments. Adjournments are sometimes granted for the mere asking especially in the heavier cases. Quite often a litigant comes to court ready with witnesses to go on with a trial and is told that the case has been adjourned. Thus parties are forced to incur needless expense and parties and witnesses are harassed. The most frequent causes of the adjournment of a hearing are that the court is pre-occupied with other cases and has no time to take up the case or cases or that the date is inconvenient to the parties or their pleaders.
In fact, the convenience of the parties or the pleaders is probably the most usual cause of adjournments. We have already dealt with the problem of adjournments arising out of the court's pre-occupation with other cases. With regard to adjournments which are granted to suit the convenience of the parties, the remedy is obvious. The matter was thus commented upon by the Civil Justice Committee:
"No hard and fast rules can be laid down in such matters. There are instances in which an adjournment should be reasonably granted to suit convenience alone. For example an application for an adjournment on the ground that the father of the principal witness had died and the witness had to attend his obsequies is a reasonable application which should be allowed At present, however, not only are such adjournments granted too frequently, the interests of the other side are not sufficiently considered. When a party wants an adjournment to suit his own convenience the court should insist as a preliminary that he pays the costs of the other side for that day.
Such adjournments should not be granted except for really good cause. Presiding officers must be stricter on the point, and be ready to give up a reputation for easy going good nature in the interests of efficiency. Lawyers who take up more work than they can handle must be shown that the court will not delay decision to suit their convenience. The principle must be accepted as absolute that a case must be taken up on the date fixed unless there is really good reason for an adjournment."1
1. Civil Justice Committee Report, p. 53, para. 13.
67. Opening (Views of the Rankin Committee) (Its importance).-
The rule as to the opening of a case in Order XVIII, rule 2 provides that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. The other party shall then state his case and produce his evidence, if any, and may then address the court generally on the whole case. It is true as the Civil Justice Committee said, that outside the High Courts the above rule is seldom followed except in cases of great complexity and large valuation. The reason for the non-observance of the rule is that the omission of the opening speech saves time. The Committee thought that an opening speech by counsel was an absolute necessity, a departure from which caused delay for the following reasons:
(1) The party not opening his case and not stating the line which he proposed to take may change his case subsequently and call other witnesses on different points to support a new case.
(2) If the case is not opened, a party cannot be confined to his original case, for the court does not know what the original case is.
(3) Failure to open the case puts the presiding officer at a disadvantage in dealing with the evidence of each witness as he is called.1
1. Civil Justice Committee Report, p. 43.
We are not in agreement with the views expressed by the Civil Justice Committee. The first reason has not much force because the parties are bound by their pleadings and the issues that have already been framed, and it is difficult to see how they can be allowed to depart from the case stated in the pleadings and crystalised in the issues merely because the opening speech has been omitted. The Committee thought that unless the case was opened, a court would not know what the original case was even if it had read the pleadings and framed the issues because the pleadings and issues would not be sufficiently informative as to the points to which the contest would be confined.
It seems clear to us that if the court has read the pleadings and the issues, as indeed it must, at the time not only of framing the issues but also before the hearing commences, the court must know what the original case of the party is. The further ground, namely, that the presiding officer may not be able to deal with the evidence of each witness if there is no opening will also not be valid except in a very few cases of exceptional difficulty and complexity.
We are of the view that in a very large majority of cases arising before the lower courts, if the judge has taken care to have the allegations in the pleadings elucidated, has framed correct issues and has taken the trouble to read them before commencing the trial, the opening contemplated by Order XVIII, rule 2 will be unnecessary and can be dispensed with.
69. It will be noticed that the rule merely states that the party shall state his case. This statement of the case may take any form from a lengthy elaboration of the several contentions in the plaint supplemented by details of the oral and documentary evidence proposed to be led, to a mere summary of the pleadings or even a mere statement of the relief claimed. A pleader might well formally open his case by reading out the relief claimed in the plaint and then call the plaintiff to depose to his case. Very little can be gained by such an opening.
In the more complicated and important cases and in cases arising out of trading and commercial transactions which depend upon technical, oral and documentary evidence, an opening is certainly of great advantage and should be insisted upon under this Rule. In such cases an opening speech will lead to a better understanding of the party's case and of the evidence which he proposes to call on the several issues. But the matter cannot and need not be governed by any rigid rule. Whether an opening in a particular case is necessary or not must ultimately depend upon the nature of the case.
70. Views of the Evershed Committees-
It is interesting to note that the Evershed Committee in their Final Report has taken a similar view. In dealing with the suggestion that some measure'of reduction of time could be obtained in the length of the trial, without detrimental effect by barring or at least limiting counsel's opening speeches, the Committee observed that such speeches were not necessarily essential and demonstrated this by the fact that in the ordinary admiralty collision case no opening speech was made by Counsel because the judge was known to have read the pleadings before entering the court. "On examination it has seemed to us that the value of an opening speech must depend largely on the nature of the individual case.
In personal injury actions, for example, counsel's opening speech will usually add little to what may be gathered from the pleadings. In other cases, however, some preliminary explanation by counsel may be essential to a proper understanding of the evidence and the issues to which it is directed. We feel, therefore, that this is a matter which cannot be governed by any rigid rule. But we are of the opinion that the Judges themselves can do much to render long opening speeches unnecessary, for in appropriate cases the fact that the Judge has read the pleadings before the trial may well enable an opening speech to be dispensed with or reduced to a minimum.
We think that there is little substance in the possible objection that, if the Judge reads the pleadings beforehand, he may enter the Court with a prejudiced mind.1" These observations are in our view, more realistic than the somewhat theoretical approach of the Civil Justice Committee to this question. We think that upon a true construction, rule 2 of Order XVIII does not cast upon the court an absolute obligation to require the parties to state their case even if such a statement of the case is, in the particular instance, considered unnecessary by the court or by the parties.
1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 101, para. 304.
71. Oral evidence.-
In dealing with the question of oral evidence we wish to refer to an undesirable practice which seems to prevail in certain courts. The plaintiff or the defendant upon whom lies the burden of proving certain issues and who has to give evidence in support of his case is not called as witness before the evidence of the other witnesses is recorded. He is called after all his witnesses have been examined. The underlying purpose of this practice appears to be that the plaintiff or the defendant giving evidence at the end may be able to fill in gaps in the evidence given by his witnesses. We strongly deprecate this practice and recommend that it should be stopped.
Party to give evidence first.- The parties to a proceeding should be in a position at the commencement of the proceedings to make up their minds whether they wish to give evidence. If they do wish, they should be required to enter the witness box before any of their witnesses are examined. We recommend that rule 2 or rule 3 of Order XVIII of the Code of Civil Procedure be suitably amended so as to embody such a provision.
72. The recording of oral evidence at a court trial takes a great deal of time. Very often time is taken in proving irrelevant and unessential allegations to which no reference is made in the arguments or in the judgment. Lengthy, roving and irrelevant examination-in-Chief and cross-examination are common In subordinate courts, both civil and criminal, in every part of the country. This is due, at times, to the lack of experience of the presiding officers and their inability to exercise control over the oral evidence. It is also due in part to the anxiety of the examining lawyers to make an impression upon their clients and upon others present in court.
The litigants themselves prefer "that examination and cross-examination should be conducted in this manner, and the methods are the traditional methods of many District Bars."1 The provisions of the Evidence Act in regard to relevant or admissible evidence are not always followed.
1. Civil Justice Committee Report, p. 44, para. 2.
73. Suggestions for saving time (Judge to question witnesses) (Power to stop evidence).-
We have considered two proposals for a more rigorous control by the presiding officer on oral evidence. The first suggestion was that the examination of witnesses of both the sides should be left to the judge himself as in some European countries, liberty being given to the lawyers of the parties to suggest questions to the judge. It was said that the system of questioning in this manner by the judge would be a better method of eliciting the truth. It was further suggested that the presiding officer should be given power to regulate evidence and stop it when he is of the opinion that sufficient evidence on a point has been put before the court. On fuller consideration and after considering the views expressed to us on these questions, we feel compelled to reject both these proposals.
74. Changes inadvisable.-
We are convinced that the proposal to leave the examination of the parties and the witnesses to the judge with liberty to the lawyers only to suggest question will not expedite the trial, nor will it further the ends of justice. It will place upon the judge the inordinately heavy burden of eliciting all essential facts relevant to the case of both the parties. The allegations of fact and law made in the pleadings or the documents on record would not disclose to the judge all the necessary material for this purpose.
The judge would not like the advocates be armed with instructions from the parties and he would therefore be unable to discharge this function in a satisfactory manner. Moreover, the proposal might well bring the judge into the arena of conflict. Nor would this procedure shorten time taken in examination and cross-examination by the advocates. On the contrary, it may lengthen the proceedings by the lawyers suggesting numerous questions to the judge to be put to the party.
It is true tha.- there is a greater probability of the witness speaking the truth in answer to questions put by the court. Under the Indian Evidence Act, however, the judge is at liberty to put any question, to a witness at any time and as a rule, experienced judges do exercise this power and intervene at the proper moment with questions from the court with a view to eliciting the truth. On the whole, we do not think, that the search for truth would in any way be facilitated by the court undertaking the entire responsibility of the examination of the witnesses of both the sides.
For similar reasons we are unable to recommend the proposal to invest the judge with power to stop evidence on any point or points when he thinks sufficient evidence has been led. In inexperienced hands this power may work injustice to one or other of the parties. It may also put a strain on the relations between the Bench and the Bar. It may convey an impression to the parties that the court has pre-judged the case. It may also create difficulties at the appellate stage, because what the trial judge may have judged to be sufficient evidence may not be regarded as sufficient by the appellate court.
The result may well be a re-trial following a remand. Evidence which may have been available to a party at the hearing may not be available later and the party may suffer irreparable damage. The responsibility for deciding whether sufficient evidence has been led must, therefore, rest on the party and his pleader. However it is always open to a court to suggest to the pleader that enough evidence has been led on a particular issues and that no useful purpose would be served by adding to the volume of evidence. Such hints thrown by experienced judges are often accepted in the proper spirit by the lawyers.
But we think that the framing of a rigid rule empowering the judge to stop the evidence will tend to undermine public confidence in the impartiality of the judge and affect the purity of the administration of justice. The Civil Justice Committee rejected a similar proposal in the following words, "We feel that we should not be justified in suggesting alterations in the law by which presiding officers would be authorised to terminate the examination of a particular witness, or to refuse to hear additional witnesses on any particular point. It seems only possible to wait, till litigants begin to see for themselves that in their own interests there should be expedition. At present we must leave the solution to the good sense of the Bench and Bar."1
1. Report 44, para. 2.
75. Larger use of affidavit evidence (Suggested enlargement).-
We have also considered a proposal for providing for a larger use of affidavit evidence. Order XIX of the Civil Procedure Code empowers the court for sufficient reasons to direct that a particular fact or facts be proved by affidavits. In practice, courts generally take evidence by affidavit in interlocutory proceedings, such as applications for temporary injunctions, attachment before the judgment and appointment of interim receivers. Affidavit evidence is also taken in applications for setting aside the dismissal of a suit for default or an ex parte decree and other miscellaneous proceedings.
We recommend that the courts should make a larger use of this power: and proof by affidavit should be encouraged not merely in ex parte and miscellaneous matters but also in contested matters for the proof of simple and incontrovertible facts. In such cases it should be open to the party to require the production of the deponent for cross-examination and if the court is satisfied about the bona fides character of the request it should direct his production before the court.
76. Limited scope for extension.-
But, apart from such limited extended use, the method of taking evidence by affidavits in contested matters will not be satisfactory from the point of view of eliciting the truth. Affidavits are generally prepared by the lawyers. They do not contain a faithful record of the story such as would be told by a witness in his own words. The credibility of a witness can be tested only when he is allowed to tell his own story. The demeanour of the witness is an important aspect which the judge has to consider in evaluating his evidence. The judge will have no occasion to observe the demeanour of the witness if the evidence is allowed to be produced on affidavits only.
Again, the public will not be satisfied that justice has been done when a decision in the case has been pronounced by the judge on the basis of affidavit evidence. It is true that the judge will have the power to direct the deponent to be produced for examination. But the power to exercise such a discretion may not be a sufficient safeguard. A larger use of affidavit evidence in contested matters cannot, therefore, be recommended. It is true that the use of affidavit evidence is successfully made in writ petitions before the High Courts and the Supreme Court. But the scope of the facts to be investigated in these matters is very narrow and such use cannot be extended to regular civil suits.
77. Recording of evidence (In English).-
The method of the recording of evidence in the court by the judge in his own hand causes considerable delay. It will be useful at this stage to examine the provisions of the Code in regard to the recording of evidence. Under section 138 of the Civil Procedure Code, the High Court has the power to direct with respect to any specified judges that evidence in appealable cases shall be taken down by them in the English language. Where a judge so empowered, is prevented by any sufficient reason from taking down the evidence in his own hand, he shall record the reason and cause the evidence to be taken down in writing from his dictation in open court.
In certain States such as Assam, Bihar, Madras and West Bengal, evidence is recorded in English in a narrative form. The record is read over or interpreted to the witness and signed by him as provided in rule 7 of Order XVIII. Where a judge is not so empowered, the provisions of Order XVIII apply. Under rule 5, in appealable cases, the evidence of each witness is taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge in a narrative form.
When concluded, it is to be read over to the witness in the presence of the judge and is then signed by the judge. If the evidence under this rule is not taken down by the judge himself, rule 8 provides that he must, as the examination of each witness proceeds, make a memorandum of the substance of what each witness deposes and such memorandum shall be written and signed by the judge and shall form part of the record. Finally, in non-appealable cases, rule 13 provides that it shall not be necessary to take down the evidence of the witnesses in writing at length, but the judge, as the examination of each witness proceeds, shall make a similar memorandum.
78. Double recording (Difficulties).-
The practice of double recording which prevails in the courts of some States in which the judges are not empowered to record evidence in English under section 138 has its origin in the aforesaid rules. The most common practice is that the bench clerk of the court takes down in the court's language, the deposition of the witness in a narrative form while at the same time the judge makes his own memorandum in English. The memorandum made by the judge is not merely a substance of the deposition as contemplated by the rules but a full narration in English of the deposition of the witness.
In fact, the judge tried to make a faithful rendering in English of the evidence given in the regional or other language. The complaint against this method of double recording is that it is wasteful and that the writing of the evidence by the judge in his own hand causes much delay. There is undoubtedly considerable substance in this comment. If the evidence is long or where the witnesses are many, the judge has to write continuously for hours and the fatigue involved in writing hampers him not only in controlling and intelligently following the trend of the examination-in-Chief and cross-examination, but also in exercising effective supervision over the vernacular recording by the bench clerk.
79. Recording by stenographers (Not practicable).-
The suggested solution of this difficulty by the employment of stenographers to take down a verbatim transcript of the evidence is open to several objections. Competent stenographers required for all the courts in the mofussil areas will not be easily available. The recording of the questions and answers in shorthand and then transcribing them in English and correcting them subsequently would cause more delay than would be caused by the judge himself taking down the evidence. If the evidence is heard throughout the day, a single record would need a relay of stenographers. The implementation of the proposal would, apart from other difficulties, be very expensive.
80. Judge to dictate evidence (Amendment suggested).-
In our opinion, the best method of freeing the judge from the mechanical necessity of taking down the evidence in his own hand and at the same time of ensuring the accuracy of the record is to enable the judge to dictate the evidence either in English or in the regional language direct on the typewriter in the hearing of the parties and their pleaders. Copies of the evidence so dictated should be made available to the parties on payment of the reasonable charges. We understand that this method of dictating evidence in open court is being followed by many presiding officers in the Bombay State with success and has been permitted by the High Court.
It enables the judge to avoid fatigue, to exercise a better control over the entire proceedings and also to ensure better accuracy in the recording of evidence, in that, it enables the parties or their lawyers to point out any mis-statement or errors. Further, if the practice of double recording is adhered to, the oral dictation by the judge in English will also help his bench clerk to make a more accurate record in the regional language. As a matter of fact, under section 356 of the Code of Criminal Procedure, all sessions judges and magistrates have been authorised either to take down the evidence in writing in the language of the court in their own hand or to have it taken down from their dictation in open court or in their presence and hearing and under their personal direction and superintendence.
Under this section, the judge or the magistrate is not required to write down, the evidence with his own hand. Under the Code of Civil Procedure, on the other hand, it is only in cases falling under sub-section (2) of section 138 that a judge can dictate the evidence in open court. We recommend the enactment in the Civil Procedure Code of a provision similar to section 356 of the Criminal Procedure Code. We are further of the view that if such an amendment is made, the necessity of keeping a double record can safely be dispensed with.