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Manoramabai Bapurao Vs. Satyabhamabai Bapurao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application No. 119 of 1968
Judge
Reported in(1968)70BOMLR686; 1968MhLJ608
AppellantManoramabai Bapurao
RespondentSatyabhamabai Bapurao
DispositionApplication dismissed
Excerpt:
.....(bom. xxxvi of 1959), schedule 2, article 1 - civil procedure code (act v of 1908), order xviii, rule 11--civil manual, chapter ix, para 211(2)--whether objection to question put to witness should be put in writing by party objecting-court requiring such writing to be made--whether such writing an application under article 1 schedule 2, bombay court-fees act-practice.;order xviii, rule 11 of the civil procedure code, 1908, and para 311(2) of chapter ix of the civil manual issued by the high court do not require that an objection to a particular question should be taken by the party or his pleader in writing or by an application. rule 11 of order xviii of the code however does not forbid taking any application in writing or any writing for the matter of that, when an objection is taken...........whenever such a question is put and an objection raised by the plaintiffs in writing, the said question, objection and the decision of the court may be reproduced in the deposition sheet as required by order xviii, rule 11, code of civil procedure and para. 211(2) of chapter ix of the civil manual issued by the high court. on this application, the learned judge of the trial court passed an order taking the view that the application which contained a request to the court that a particular question should not be allowed is an application which should be required to be stamped under article 1 of schedule 2 of the bombay court-fees act. it is not, according to him, a pursis of the parties or pleaders to the enquiry made by the court. he, therefore, directed that such an application.....
Judgment:

Padhye, J.

1. This revision petition raises a question about Court-fees. It arises in this way.

2. In the suit before the trial Court, plaintiff No. 1 was being examined as a witness on her behalf. While questions were being put to plaintiff No. 1 in cross-examination, the counsel for the plaintiffs objected to those questions being put. The evidence of plaintiff No. 1 was lengthy one and, as observed by the learned trial Judge, consisted of about 59 pages and the evidence was being recorded from July 6, 1966 to August 19, 1966. When the objections grew frequent, the learned Judge directed the plaintiffs' counsel to put the questions and his objections in writing. This order was challenged by the plaintiffs in Civil Revision Application No. 356/66 (1966) Civil Revision Application No. 356 of 1966, decided by L.M. Paranjpe J., on April 19, 1967 (Manorambhai v. Satyabhambhai) (Unrep.). This Revision Application was dismissed by the order dated April 19, 1967. It was contended in the revision that Order XVIII, Rule 11 of the Civil Procedure Code or sub-para, (2) of para. 211 of Chapter IX of the Civil Manual issued by this Court do not require any writing incorporating the objections to the questions objected to and in that context it was observed in the judgment of the aforesaid civil revision application that there was nothing in the sub-para. (2) of para. 211 of Chapter IX of the Civil Manual or in Rule 11 of Order XVIII of the Civil Procedure Code to support the contention of Mr. Chandurkar that the Judge has no power to call upon the objector to specify the questions and the objections thereto in writing. It was then observed that normally a Judge records the question and objection thereto on an oral objection being raised, but if the Judge finds that frivolous objections are being raised or are being repeated or if he has an apprehension that his record of the question or of the objection as made by him may be questioned by the counsel, he will be perfectly justified in calling upon the counsel to put down the question and the objection thereto in writing so that he may reproduce the question, the objection and his decision thereon in the deposition sheet as per sub-para. (2) of para. 211; and no hard and fast rules can be laid down in this connection and the matter must be left to the good sense of the counsel and the Judge. The learned Judge further observed that he was not prepared to lay down any general rule and each case must depend on its own facts. With these observations, the revision application filed on behalf of the plaintiffs was dismissed.

3. When the matter went back to the learned Judge for recording further evidence, the plaintiffs wanted to be assured that whenever a question was objected to and it was put in writing with the objection thereon, such a writing would not be required to be stamped and that the plaintiffs would be allowed to put in unstamped pursis for the said purpose. A further request was made on behalf of the plaintiffs that whenever such a question is put and an objection raised by the plaintiffs in writing, the said question, objection and the decision of the Court may be reproduced in the deposition sheet as required by Order XVIII, Rule 11, Code of Civil Procedure and para. 211(2) of Chapter IX of the Civil Manual issued by the High Court. On this application, the learned Judge of the trial Court passed an order taking the view that the application which contained a request to the Court that a particular question should not be allowed is an application which should be required to be stamped under Article 1 of Schedule 2 of the Bombay Court-fees Act. It is not, according to him, a pursis of the parties or pleaders to the enquiry made by the Court. He, therefore, directed that such an application should bear a Court-fee stamp of 65 P. This order is now challenged in the present revision application.

4. Order XVIII of the Civil Procedure Code lays down the procedure of hearing of the suit and examination of witnesses. It lays down how the Presiding Officer is to control recording of the evidence of the witnesses and how the witnesses are to be examined. Rule 11 of Order XVIII lays down the procedure where a question put to a witness is objected to by a party or his pleader and the duty laid on the Judge to take down the question, the answer given by the witness, the objection taken to such question, the name of the person making it and the decision of the Court thereon. Rule 11 does not anywhere lay down that an objection to a particular question should be taken by the party or his pleader in writing or by an application. Objections are taken during the course of the examination of a witness and ordinarily has to be an oral objection. It is true that the rule does not forbid taking any application in writing or any writing for the matter of that, when an objection is taken, but it also does not provide for requiring an application or a writing to be given for an objection being put. Rules have been made by this Court for the guidance of the Civil Courts known as Civil Manual and Chapter IX thereof deals with trial of suits. Paragraph 211(2) of the Civil Manual provides;

When any question is objected to, and the Court disallows it, or allows it to be put, the objection and the Court's decision and the other particulars required by rule 11 of Order XVIII of the Civil Procedure Code may be noted in the body of the deposition or memorandum of evidence.

This paragraph also does not specify that the objection to the question must be put in writing and by way of an application. There is thus no provision of any law or a rule made by the High Court requiring an application in writing or an objection in writing to be made whenever a question during the examination of a particular witness is being objected to. It must, therefore, follow that oral objections to the questions are permissible and whenever such an objection is taken, the Court has to follow the procedure of recording the question, the objection and the decision of the Court with reasons therefor in the body of the deposition itself. In this particular case, however, it has been decided earlier by this Court in Civil Revision Application No. 356 of 1966 that the Presiding Judge would be justified in asking for a writing from the party or counsel objecting and requiring him to put the question and the objection thereto in writing before the Court. This is not by way of any requirement of the provision of law or rule, but only as a matter of expediency and for the purposes of safeguarding the position of the presiding Judge if he thinks that there is likelihood of objections being raised to the recording of the question and the objection as has been observed in this Court's judgment in Civil Revision Application No. 356 of 1966. It is not open to me to say anything about the observations that have been made in the earlier judgment, but the judgment itself has said that it is not laying down any rule. The learned Judge was not prepared to lay down any general rule and each case must depend on its own facts.

5. When the law or the rules do not require any writing to be given by the party objecting to the question, it cannot be said to be an application by a party or a counsel which has to be stamped under Article 1, Schedule 2 of the Bombay Court-fees Act. It is a right of a party or a counsel to object to questions which, according to him, are not relevant or admissible or frivolous or vexatious and if such objections are raised to the questions, it is the duty of the Judge to decide whether such questions should be allowed or disallowed and he has been enjoined by the Code of Civil Procedure as well as the Rules framed by this Court for the guidance of the Civil Courts to record such questions, objections, answers and the decision with reasons in the deposition itself. The writing is only given for the facility of the Court as the Court requires it and not because the party or the counsel is required by the Civil Procedure Code or the Rules to make such an application for the decision of the Court. Such a writing which the Court requires from the party or the counsel could not be taken as an application as provided in Article 1, Schedule 2 of the Court-fees Act and such writings which the party or the counsel would be giving as directed by the Court would not require any Court-fee stamp. The order of the learned trial Judge directing that such writing should bear a stamp as provided for in Article 1, Schedule 2 of the Bombay Court-fees Act is erroneous and must be set aside. The order of the learned Judge, dated August 24, 1967 giving his clarification on the application made by the plaintiffs on August 16, 1967, is, therefore, set aside and the learned trial Judge is directed to admit such writings where questions are objected to without any stamp from the party putting such objections. In the circumstances, I make no order as to costs.


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