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P.T. Anklesaria Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit Nos. 432 of 1967 and 295 of 1970
Judge
Reported in(1974)76BOMLR688
AppellantP.T. Anklesaria
RespondentUnion of India (Uoi)
Excerpt:
civil procedure, code (v of 1908), order xviii, rules 3, 2, section 151 -- order in which counsel should address court in cases falling under order xviii, rule 3, civil procedure code -- third party having right to address court in such case -- how order is to be determined -- rules of supreme court in england, order xxxv, rule 7.;where, under rule 3 of order xviii of the code of civil procedure, 1908, evidence is produced by the defendant on issues in regard to which the onus lies on him, the order in which counsel should address the court is as follows: the plaintiff should first address specially on the evidence led by the defendant; the defendant should then reply specially to the plaintiff's address on that evidence. this should be followed by a general address by the defendant on..........to suit no. 432 of 1967 (the clearance contractors) had exercised the option under order xviii, rule 3 of the code of civil procedure of reserving their evidence on the issues on which burden of proof was on the government, the question as to the order in which the learned counsel should address the court would have to be decided in reference to the provisions of the said rule. before i go to that rule, however, i may refer to order xviii, rule 2 of the said code which lays down the general rule that, when evidence on both sides has concluded, the party, other than the one which had the right to begin, must 'address the court generally on the whole case.' it further provides that the party beginning may then 'reply generally on the whole case.' a careful reading of order xviii,.....
Judgment:

Vimadalal, J.

1. This was a mammoth case in which an aggregate of over 50,000 documents were disclosed by the parties to the suit and the hearing which started on July 30, 1973, has proceeded for forty-five working days by the time the evidence of all sides was closed yesterday. It relates to a claim of several lakhs by clearance contractors against the Government of India in respect of a contract relating to foodgrains and a cross-claim by the Government against those contractors for certain deductions for breach of their obligations under the contract. It may be stated that the hearing of these two suits proceeded as a consolidated hearing under an order passed by my brother Nain on November 29, 1972. When the evidence was closed yesterday, the question arose as to the order in which the learned Counsel should address me.

2. As the plaintiffs to Suit No. 432 of 1967 (the clearance contractors) had exercised the option under Order XVIII, Rule 3 of the Code of Civil Procedure of reserving their evidence on the issues on which burden of proof was on the Government, the question as to the order in which the learned Counsel should address the Court would have to be decided in reference to the provisions of the said rule. Before I go to that rule, however, I may refer to Order XVIII, Rule 2 of the said Code which lays down the general rule that, when evidence on both sides has concluded, the party, other than the one which had the right to begin, must 'address the court generally on the whole case.' It further provides that the party beginning may then 'reply generally on the whole case.' A careful reading of Order XVIII, Rule 2 shows two things: first, that it makes a distinction between an address and a reply to that address; and secondly, that it proceeds on the principle that the party which has to unfold its evidence first must have the last word in addressing the Court. Curiously enough, however, Order XVIII, Rule 3 with which the Court is concerned in the present case, does not use the term 'address' at all, but deals only with the 'reply' which is to be given to the evidence produced by the defendant on the issues in regard to which the onus is on the defendant, as well as the general 'reply' to the whole case. One thing which Order XVIII, Rule 3 makes clear is that it contemplates separate replies by each of the parties. In my opinion, however, each of those replies must, naturally and necessarily, be preceded by an address, as the plain dictionary meaning of the term 'reply' as well as the sense in which the Legislature has used the term 'reply' in Order XVIII, Rule 2 which is in pari materia, clearly show. Reading Order XVIII, Rule 3 in that manner, the procedure which it, in my opinion, lays down by clear implication is that the plaintiff must first address specially on the evidence led on the issues in regard to which the onus is on the defendant; the defendant must then reply specially to the plaintiff's address on that evidence; that must be followed by a general address by the defendant on the whole case; and ended up by a reply by the plaintiff generally on the whole case. The position, therefore, is that, in between the special address by the plaintiff on the evidence on issues in regard to which the onus is on the defendant and the general address by the plaintiff on the whole case, will be sandwiched addresses, which may be consolidated into one address by the defendant, both on the evidence on the issues in regard to which the onus is on the defendant, as well as on the whole ease. This order would, in my opinion, also be in conformity with the principle embodied in Order XVIII, Rule 2 to which I have referred viz., that since on the issues in regard to which the onus is on the defendant, it is the defendant who first places his cards on the table, he should have the last word with the Court on that evidence; and since the general evidence in the case is first led by the plaintiff, he should have the last word in addressing- the Court generally on the case. In my opinion, this is the only reasonable construction that can be placed on Order XVIII, Rule 3 of the Code of Civil Procedure which makes no express provision either for an 'address' by the plaintiff specially on the evidence on the issues in regard to which the onus lay on the defendant, or for a general 'address' by the defendant, on the whole case. It may, in passing, be mentioned that the Allahabad High Court has amended the provisions of Order XVIII, Rule 3 so as to make the position in regard to the order in which the parties are to address the Court quite clear, though what it provides is quite different from my interpretation of Order XVIII, Rule 3 as applicable to this Court. Whichever be the course preferred, it is desirable that an appropriate amendment clarifying the position should be made in Order XVIII, Rule 3 of the Code of Civil Procedure as applicable to this Court which contains these apparent lacunae. It should also be mentioned that Order XXXV, Rule 7 of the Rules of the Supreme Court in England contains provisions of an entirely different nature in regard to the order of addresses and is, therefore, of no assistance for the purpose of construing Order XVIII, Rule 3 of the Code of Civil Procedure. There is one thing which may, however, be noted, and that is, that Sub-rule (1) of Order XXXV, Rule 7 of the Rules of the Supreme Court in England gives the widest possible discretion to the Court to give directions in regard to the 'order of speeches at the trial.'

3. In the present case, however, the matter is further complicated by reason of the order of consolidation of the two suits passed by my brother Nain on November 29, 1972, as a result of which a third party has come into the picture viz., the All India General Insurance Co. Ltd., which is defendant No. 6 to Suit No. 295 of 1970, and which also has a right to address the Court -- a situation which Order XVIII, Rule 3 does not contemplate and cannot meet. In that situation, in my opinion, I must resort to the inherent powers of the Court under Section 151 of the Code of Civil Procedure, for every Court has an inherent right to regulate its own procedure in cases in which the Code of Civil Procedure does not prescribe the same. This is too well-settled by decisions: of the highest Court to need authority. In such a situation, in England, the Court could give appropriate directions under Sub-rule (1) of Order XXXV, Rule 7 of the rules of the Supreme Court in that country which is, virtually, in the nature of a statutory recognition of the inherent power of the Court to regulate its own procedure. Having regard to the facts and circumstances of this case to which I have referred, and particularly to the order of consolidation of the two suits, in exercise of my inherent powers under Section 151 of the Civil Procedure Code, I, therefore, direct that the order of addresses should be as follows:

1. Mr. Shambhu on behalf of the 6th defendant in Suit No. 295 of 1970 will address the court generally;

2. Mr. C.J. Shah on behalf of the government and its officers in both the suits will thereafter address the court generally;

3. Mr. G.A. Thakkar on behalf of the clearance contractors' firm will then address the Court on the evidence led on the issues in regard to which the onus was on the government as well as give a reply to the general addresses of Mr. C.J. Shah and Mr. Shambhu on the whole case;

4. Mr. C.J. Shah will reply at the end only to the addresses by Mr. Thakkar on the evidence led on the issues in regard to which the onus was on the government.

This order will give the necessary opportunity to the clearance contractors' firm to reply to the case generally, and to the Government to reply to the firm's address on the evidence on the issues in regard to which the onus was on the Government itself and also to give a reply to the general address of Mr. Shambhu and will, therefore, meet the ends of justice, as required by Section 151 of the Code of Civil Procedure. I fix January 7, 1974 for hearing the addresses in the above order.


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