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B.N. Chobe Vs. A. Chaffar Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1173 of 1971
Judge
Reported inAIR1973AP305
ActsHyderabad Small Causes Courts Act, 1330 - Sections 9; Code of Civil Procedure (CPC), 1908 - Order 18, Rule 15 - Order 50
AppellantB.N. Chobe
RespondentA. Chaffar Khan
Appellant AdvocateB.N. Chobe, Party in person
Respondent AdvocateB. Jaganadha Sastry, Adv.
Excerpt:
.....above case held that in the absence of a specific provision like order 18, rule 15, a small cause judge in hyderabad cannot act upon the memorandum of evidence recorded by his predecessor, but should conduct a trial de novo. expressed the vie w that there is the rule of jurisprudence which requires that the evidence in the suit shall be taken by the judge who pronounces the judgment, and the practice in many courts, being, as is well known, to the contrary'.the principle appears to us to be that notwithstanding rthe succession of officers presiding over a court the continuity of the office as such is maintianed' it is this principle which is incorporated in section 14 of the andhra pradesh general clauses act which reads as follows: - there is nothing in principle which requires that a..........the hyderabad code of civil procedure relating to examination of witnesses, does not apply to the trial of small cause suits. it is common ground that sections 213 to 221 of the hyderabad code of civil procedure correspond to order 18, rules 5 and 10 to 18 of the code of civil procedure (indian). it follows, therefore, that there is no provision corresponding to rule 12 or rule 15 of order 18 of the code of civil procedure (indian) enabling the hyderabad small causes court either to take down the substance of the evidence or to enable a successor judge to act upon the evidence recorded by the predecessor. but as a matter of general practice we are told that the hyderabad small causes courts have been since 1960 taking down only a memorandum of the substance of the evidence as they are.....
Judgment:

M. Krishna Rao, J.

1. The question for determination before us is whether a Judge exercising jurisdiction under the provisions of the Hyderabad Small Causes Courts Act can act upon the memorandum of Evidence already recorded by his predecessor, or whether he should conduct a trial de novo.

2. In R.S. Mahmood v. Syed Ahmed, : AIR1963AP65 a Division Bench of this Court (Chandra Reddy, C.J. and Narasimham, J) took the view that in such a case there should be a de novo trial. As the correctness of this decision has been challenged, the case is placed before the Full Bench.

3. This revision petition is filed by the plaintiff in a small causes suit in the four witnesses have given evidence on behalf of the plaintiff the presiding officer was transferred on promotion. When the case was taken up by the successor, the defendant filed an application I.A.No. 156 of 1971 asking for a de novo trial on the ground that the succeeding judge has no power to act upon the memorandum of evidence recorded by his predecessor. The said application was allowed ordering a de novo trial following the judgment of this Court in : AIR1963AP65 , Aggrieved by this order, the plaintiff filed this revision.

4. In order to appreciate the point of controversy it is necessary to refer to the relevant provisions of law. The procedure for hearing witnesses is laid down in O. 18 of the First Schedule to the Code of Civil Procedure, 1908, Rule 4 contain s a general provision for taking down the evidence of the witnesses orally in the presence of the Judge. Rule 5 lays down that in appellable cases the evidence shall be taken in the forms of narration to be signed by the witness and the Judge. Under Rule 13 it is provided that in cases where no appeal lies, the Judge may merely make a memorandum of substance of the evidence. Rule 15 contains a general provision that a succeeding Judge can deal with any evidence or memorandum taken by his predecessor and proceed with the trial. Under Order 50 of the First Schedule to the Code of Civil Procedure, the provisions of Order 18, Rules 5 to 12 are excluded from their operation as regards Courts exercising powers under the Indian Provincial Small Cause Courts Act.

5. We will now turn to the provisions of the Hyderabad Small Causes Courts Act (VI of 1330 Fasli). Section 9 provides that a Court of Small Causes shall in the trial of suits, follow as far as possible, the provisions of the Code of Civil Procedure (Hyderabad) except those specified in the Schedule annexed to the Hyderabad Small Causes Courts Act. The said schedule excludes several provisions of the Hyderabad Code of Civil Procedure (No. III of 1323 F) from the purview of the Small Causes Courts Clause 6 of the Schedule lays down that Sections 213 to 221 of Chapter XIX of the Hyderabad Code of Civil Procedure relating to examination of witnesses, does not apply to the trial of small cause suits. It is common ground that Sections 213 to 221 of the Hyderabad Code of Civil Procedure correspond to Order 18, Rules 5 and 10 to 18 of the Code of Civil Procedure (Indian). It follows, therefore, that there is no provision corresponding to Rule 12 or Rule 15 of Order 18 of the Code of Civil Procedure (Indian) enabling the Hyderabad Small Causes Court either to take down the substance of the evidence or to enable a successor Judge to act upon the evidence recorded by the predecessor. But as a matter of general practice we are told that the Hyderabad Small Causes Courts have been since 1960 taking down only a memorandum of the substance of the evidence as they are not appealable cases. But the anamolous position is that while judges exercising powers under the Indian Provincial Small Cause Courts Act can proceed to act on the basis of evidence noted by a predecessor in office, there is no specific provision enabling a small cause Judge in Hyderabad to act upon the evidence noted by his predecessor. Though the Hyderabad Code of Civil Procedure was repealed on 1-4-1951 and the Indian Code of Civil Procedure, 1908 was made applicable to the Hyderabad territory, nevertheless the Schedule attached to the Hyderabad Small Causes Courts Act still retained Clause 6 excluding the operation of Section 213 to 221 of the Hyderabad Code of Civil Procedure corresponding to Order 18, Rules 5 and 10 to 18 of the Indian Code of Civil Procedure. There was, therefore, an apparent repugnancy between the provisions of the Code of Civil Procedure (Indian), which are made applicable to Hyderabad, and the provisions of the Hyderabad Small Causes Courts Act. After the application of the Indian Code of Civil Procedure to the Hyderabad territory, the procedure to the Hyderabad Small Causes Courts should be governed by the provisions of Order 18, Rules 13 and 14 which relate to taking the substance of evidence and enabling a successor Judge to act upon the notes recorded by his predecessor. But in view of the special provision in the Hyderabad Small Causes Courts Act excluding the said provisions which correspond to Order 18, Rules 13 and 15, a Division Bench of this Court in : AIR1963AP65 cited supra held that the provisions of the Special Act viz the Hyderabad Small Causes Court Act, will prevail as against the Indian Code of Civil Procedure, which is a general Act in view of the special provisions of Section 9 of the Hyderabad Small Causes Courts Act applying the provisions of the Code of Civil Procedure subject to the exclusions contained in the schedule annexed to the Hyderabad Small Causes Courts Act. It is urged before us that as the Hyderabad Civil P.C. was repealed the question of repugnancy does not arise. We do not however propose to go into this question, for even if we agree with the above decision that there is repugnancy the further question is whether there should necessarily be a de novo trial when there is a change in the presiding officer by reason of death or transfer. The learned Judge who decided the above case held that in the absence of a specific provision like Order 18, Rule 15, a small cause Judge in Hyderabad cannot act upon the memorandum of evidence recorded by his predecessor, but should conduct a trial de novo. No provision of law has been cited by the learned Judge in support of this conclusion. Hence the question which falls for decision before us is whether the said view is correct.

6. The earliest authority which considered the general principle in great detail is the Full Bench decision of the Allahabad High Court in Jadu Rai v. Kanizak Hussain, (1886) ILR 8 All 576. We may usefully cite the following summary of the legal position from the judgment of Mahmood, J, in the said case. Although it is true that ' A trial must be one and must be held before one Court only', the identity of the Court is not altered by a new Judge being appointed to preside in such Court. When a trial goes on for more than one day, each day constitutes a separate hearing and such hearings cannot be treated as a 'trial heard on the original date'. The Civil P.C. does authorise a Judge to take up a case which was been partly heard before his predecessor, and to continue it from the point at which his predecessor left off. Where the Judge who has partly heard a case dies or is removed, the trial, so far as it has gone before him, is neither abortive nor becomes a nullity. The new Judge is not required to fix a day for the entire hearing of the suit before himself, nor is there anything to prevent himself, nor is there anything to prevent him for taking up a trial which has been partly heard by his predecessor, and to proceed with it as if it had been commenced before himself, The Code does not recognise such procedure as amounting to separate trials. The Judge who succeeds another after a trial which as partly proceeded before his predecessor is not bound to fix a new day for commencing the trial de novo, nor should the trial proceed before the new Judge as if the day were the first on which the case had even (ever) come on for hearing. The evidence recorded by the preceding Judge, by the mere fact of being upon the record, is ipso facto, evidence in the cause, and could under Section 191 of the Code, be treated by the succeeding Judge 'as if he himself had taken it down or caused it to be made'. When the case comes on for hearing before the new Judge there is no necessity for putting in the depositions of witnesses which, though taken by his predecessor, are already upon the record. Such depositions must be dealt with a smaterials of evidence before the new Judge. A judgment and decree upon such evidence are neither illegal nor absolute nullities, there being no want of jurisdiction. When such judgment and decree are passed, the Court of first appeal is prohibited, by Section 564 of the Code, to order a trial de novo but is bound by Section 565 of the Code to decide the appeal upon the evidence in the record. Where further issues are required to be tried, or additional evidence is to be taken, the Court of appeal is bound to act according to the provisions of Sections 565, 568 and 569 of the Code, but cannot order a new trial. Even when there has been an irregularity on the part of the first Court in receiving or rejecting evidence; the provisions of Section 578 of the Civil P.C. and Section 167 of the Evidence Act prohibit the reversal of a decree and the remand of a case for new trial unless the irregularity affects the merits of the case or the jurisdiction of the Court. It was further observed by Mahmood, J. In the course of his judgment that as a general principle the continuation of a suit by a successor Judge cannot be declared as a nullity as the policy of the law is that the delay and expense of new trials must as far as possible, be avoided. It was also emphasised that it is not permissible to import technicalities foreign to the Code of Civil Procedure which are not calculated to promote either the interests of the parties or the interest of justice. The learned Judge quoting from Jeremy Bentham - Rationale of Judicial Evidence , Specified applied to English Practice observed delay and expense in the disposal of litigation is a worse evil that that of having judgments pronounced by persons who have not themselves taken the whole oral evidence in the case. In Naran Bai Vrijbhukandas v. Nnaroshankar Chandrashekar, (1867-1868) 4 Bom HCR ACJ 98, Counch, C.J. expressed the vie w that there is the rule of jurisprudence which requires that the evidence in the suit shall be taken by the Judge who pronounces the judgment, and the practice in many Courts, being, as is well known, to the contrary'. The principle appears to us to be that notwithstanding rthe succession of officers presiding over a Court the continuity of the Office as such is maintianed' It is this principle which is incorporated in Section 14 of the Andhra Pradesh General Clauses Act which reads as follows:-

'Section 14, Where an Act confers a power or imposes a duty on the holder of an office, as such, then the power may be formed by the holder for the time being of the office'.

7. It was also pointed out by the Supreme Court in Rao Shiva Bahadur Singh v. State of Vindhya Pradesh, : [1955]2SCR206 as follows:-

'There is nothing in principle which requires that a case must always be decided in its entirely by one Judge or one set of Judges even though such a case may conveniently be dealt with in two or more stages'

8. The petitioner's learned counsel placed strong reliance upon a decision of a Division Bench of this Court in Hari Kishan Singh v. Be. Narayana, (1971) 1 Andh Pra LT 29. In the said case the question which arose for consideration was whether a Rent Controller can act upon the evidence recorded by his predecessor, or whether he should conduct a de novo trial. On an elaborate consideration of the question it was finally held by the Division Bench that the provision contained in O.18 R. 15 conferring power upon a Judge to act upon the evidence recorded by his predecessor it is a mere enabling provision and there is nothing in the said procedure which is repugnant to the principles of natural justice. It was observed that though there is no specific provision in the Rent Control Act or the Rules thereunder conferring such power, the said power can be exercised as it is only an enabling provision not going to the root of the jurisdiction. It is needless for us to consider once again the various authorities referred to by this Court in the said decision. In the course of the judgment the provisions of Section 14 of the Andhra Pradesh General Clauses Act have also been invoked. The principle laid down in the above case may well be applied to the instant case. There is no specific provision enabling a Judge in the small Cause Courts to act upon the evidence recorded by his predecessor. We are, therefore of the opinion that the power of the Judge to act upon the evidence recorded by his predecessor is only an enabling provision and is a question relating to mere procedure and not one of jurisdiction. In this connection we may usefully refer to the observation of Lord Penzance in Combe v. Edwards, (1878) 3 PD 103:

'The Spirit of justice does not reside in formalities or words nor is the triumph of its administration to be found in successfully picking a way between the pitfalls of technicality. After all, the law is, or ought to be, but the hand-maid of justice; and inflexibility, which is the most becoming robe of the latter, often serves to render the former grotesque. '

It follows, therefore, that a party litigant has no right to demand a trial de novo whenever a Judge succeeds another. If the rule were otherwise it would not only result in untold hardship to the litigant public, but would also contribute to the ever increasing delay in the disposal of cases. It would give a handle to the litigant to obliterate all recorded evidence which is adverse to him. But it should be noted that as it is a mere enabling provision it will be always open to the Judge in his discretion to recall a witness if he finds that he is unable to decipher the handwriting of his predecessor or if the recorded gist of evidence is obscure or un-understandable. A scrutiny of the provisions of Order 18, Rule 15 also makes it clear that a Judge can adopt the above course. The rule merely says that the successor may deal with any evidence or memorandum taken by his predecessor.

9. The learned counsel for the respondent invited our attention to the following two decisions. In Debi Sankar v. Jogendra Bhusan, AIR 1949 Cal 65 an application was made before the Rent Controller for permission to institute a suit before the Presidency Small Causes Court for eviction on the ground that the premises is required for personal use. The Rent Controller having granted permission, a suit for ejectment was filed in the Small Causes Court; but it was dismissed on the ground that the requirement was not bona fide. This decision was challenged in revision on various grounds. It was urged inter alia that the Small Causes Court did not record a memorandum of evidence so as to enable the High Court to revise its decision. It was held that the provisions Order 18 are not extended to the Presidency Small Causes Court and that there was no obligation on the said Court either to record evidence or to make a memorandum thereof. The question of a successor proceeding to judgment on the basis of evidence recorded by a predecessor did not arise in the present case. The next is Dalim Kumar v. Nandarani, : AIR1970Cal292 . That was a case on the original side of the High Court of Calcutta, a Charter High Court. By virtue of Order 18 in so far as they relate to the manner of taking evidence are excluded from operation to Charter High Court exercising original jurisdiction. But it was held in the said case that in view of the consent of both the parties the evidence recorded by one Judge was accepted as the basis for the successor to proceed to judgment. We do not find anything in these two decisions to show that there should necessarily be a de novo trial whatever a Judge is succeeded by another. In conclusion we hold that the power of a Judge to act upon the evidence or memorandum of evidence recorded by his predecessor is a mere enabling provision relating to a matter of procedure and not affecting one of jurisdiction. A party cannot demand a trial de novo as of right ; but there is nothing which precludes a Judge from recalling a witness of he is unable to decipher the handwriting of his predecessor or if he finds the statements obscure or un-understandable on any material particular affecting the merits of the case.

10. Before concluding our judgment, we suggest that there should be a suitable amendment of Clause 6 of the Schedule annexed to the Hyderabad Small Causes Courts Act by substituting the following ' Order 18, Rules 5 to 12 ' in the place of ' Order 18, Rules 5 and 10 to 18 ', so as to bring the provision in consonance with Order 50, Civil P. C. ( Indian ).

11. In the view we have expressed above, we overrule the decision in : AIR1963AP65 in so far as it held that de novo trial is necessary.

12. In the result, this revision is allowed and the Court below is directed to dispose of the suit on the basis of the evidence already recorded. The petitioner is entitled to his costs in this revision petition.

13. Revision allowed.


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