1. Issuing Commissions for recording the statements of witnesses is not unusual in civil cases. It is being done ever since the Code of Civil Procedure was enforced more than a hundred years ago. Whenever a case for such examination is made out, parties are allowed to examine their witnesses on commission. in the case before us the defendant asked for permission to examine his witnesses on commission The permission was given. Now he refuses to examine them and contends that he will examine them on commission only after the plaintiff has examined his witnesses and closed his case. He claims it as his right. He declines to examine them before the case is set down for hearing. If he is right then there is an end of the conception of a continuous trial. Let us, thereforee, examine the Code of Civil Procedure and find out its intention.
2. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. To achieve it various provisions have been made in the Code, Each party is required to place all the material facts before the Court. Gone are the days of hide-and-seek and a party is no more allowed to take the opposite party by surprise. The X to examine any party at the first caring of the suit, or at any subsequent hearing, about any material questions relating to the suit. Needless to say, this Examination forms a part of the record of the case. No party can object to the questions asked by the Court. The plea that the opposite party has not yet been examined cannot be raised. Each party has been given the right to ask for the discovery of facts and documents, as well , inspection of documents, from the opposite party and the latter is bound to disclose them as long as the matter is relevant to the suit (Order XI). Each party is required to admit or deny the documents produced by the opposite party (Order X11). A party can also call upon any other party to the suit to admit for the purposes of the suit. any specific fact or facts. The Court is required to frame issues on the matters at which the parties are found at variance (Order XIV).
3. The procedure for trying the case is laid down in Order Xvii, Rule 1 of the Code. It is in the following terms:
'1. (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded. 'The proviso to sub-rule (2) unambiguously lays down that once the hearing of evidence has begun, the hearing has to continue from day to day till all the witnesses have been examined. Adjournment is an exception and continuous hearing is the rule. It is true that the Courts, in practice, have buried the rule fathoms deep and have been granting adjournments on the flimsiest of grounds. It is rare indeed when a Court holds a trial continuously in terms of this rule. But then this is no reason why this rule should not be followed and enforced in practice.
4. Way back in 1925 Civil Justice Committee Report severely condemned the judiciary for continuously flouting the provisions of Order Xvii, Rule 1 by granting adjournments for every conceivable reason and failing to hold a continuous trial. After a lapse of 33 years the 14th Report of the Law Commission of India on 'Reform of Judicial Administration (1958)' notes with concern the failure of the courts to appreciate that Order Xvii, Rule 1 'contemplates the continued hearing of a case, once it has started, from day to day until it is finished'. The Commission found that the judiciary seemed to think 'that the interrupted hearings should be a rule and day to day hearings the exception'. Unfortunately the lawyers and the subordinate judiciary still persist in flouting these provisions by refusing to have a continuous trial. The continuous failure of the Courts to observe this rule has resulted in the Legislature proposing to drastically curtail the discretion of the Courts in granting adjournments during a trial as is apparent from the Bill to amend the Civil Procedure Code which is pending in the Parliament.
5. It is important to remember that the general rule is that witnesses should be examined by the parties in open Court and their evidence tested by cross-examination, It is for that reason that Rule 4 of Order xviii requires 'the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the judge. This enables a judge to know the demeanour of a witness while under examination. It is true that under Rule 12 the Court may record such remarks as it thinks material respecting the demeanour of a witness, but is just not possible to record the impressions left on the mind of a judge by a witness appearing uncomfortable, hesitant, nervous, hollow insincerc, avoiding to tell the truth, and a witness answering questions confidently in an unruffled, straightforward manner giving the true ring. These are a great help in doing justice and no amount of words in cold print can be a substitute of these impressions. The impressions are bound to fade with the passage of time especially when a Judge is busy noting the demeanour of witnesses day after day in our other cases. And these become utterly useless in a piecemeal trial spread over a long period of time where various Judges come to record the evidence and the Judge deciding the case, perhaps, having no advantage of looking at the demeanour of witnesses.
6. Schlesinger in 'Comparative Law Cases and Materials' (1950 Edition), after comparing various civil procedures has this to say about a continuous trial:
'The civilians seems to realize more and more the advantages of a 'day in court', permitting the judges, who are the triers of the facts, to obtain a live and immediate impression of the witnesses..........So long as the civil jury remains with us, it will always be necessary to concentrate the introduction of evidence in one trial which then becomes the focus of the whole proceeding ...........The system of holding a continuous trial in an open Court not only helps the judge' to do better justice, it also convinces the public that justice is being done. A citizen interested in finding out the quatity of justice administered in the courts can sit through the trial and judge for himself the decision given in the case. Sir Maurice Anions in an article 'A day in Court at Home and Abroad' (1926) 2 C Lj 340 after examining various procedural systems, observes that any member of the public sitting in a court in England can hear a case opened, witnesses examined and cross-examined, relevant portions of documents, if any, read, and at the end of the proceedings, be in a position to form his opinion whether the decision given by the Judge is reasonable.
7. Circumstances may arise in a case where it is not possible for a party to examine his witnesses in Court ' A witness may be about to leave the country; another may be too old or dangerously ill; still another may be living either in a foreign country or very far from the place where the Court sits. In order to meet such contingencies a party is allowed to examine a witness de bene esse or on commission, This is allowed to be done on the condition that if the witnesses continue to be ill or absent during the trial their evidence may be read at the trial, but if they recover or return, then the evidence shall be taken in the usual manner.
8. The defendant refers to Rule 2 of Order xviii of the Code and contends that he cannot be asked to produce his evidence unless and until the plaintiff has produced his evidence. For that reason. the defendant further contends, he has got a right to examine his witnesses on commission only after the plaintiff has closed his case and thereforee, Rule 1 (a) of Chapter X of Delhi High Court (Original Side) Rules amounts to a denial of justice. We have heard Mr. Malik and Mr, Radhey Lal Aggarwal in support of this contention. Mr. S. L. Bhatia, President of the Delhi High Court Bar Association, whom we asked to appear as M/s Filmistan Private Ltd., Bombay v.amices Curiae, also addressed us. We must record our gratitude for the help SC 61). It should also not be forgotten that rendered by Mr. S. L. Bhatia.
9.Order xviii provides for the hearing of the suit and examination of witnesses. Rule 1 provides for the circumstances under which the defendant will have the right to begin,failing which the right to begin,failing which the right to begin will be with the plaintiff.
Rule 2 order xviii of the code reads thus:-
'2.(1) on the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence is support of the issues which he is bound to prove.
(2) 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.
(3)The party beginning may then reply generally on the whole case.'
It requires the parties to state their case before producing their evidence. The party having the right to begin has to produce his evidence first and thereafter the opposite party is required to produce his evidence. Practically all the High Courts have amended this rule empowering the Court to direct any party at any stage to examine any witness. Rule 16 also empowers the Court to take the evidence of a witness at any time after the institution of the suit. This power can be exercised either on the application of any party or of the witness himself where the witness is about to leave the jurisdiction of the Court. It is thus clear that in order to meet contingencies Rule 2 can be departed from and the evidence of witnesses can be recorded even before the stage for recording the evidence of a party has reached.
10. Order Xxvi provides for recording the evidence of witnesses on commission. It is a departure from the general rule that the witnesses must be examined in the open Court before the judge trying the case. This provision has been made in order to meet contingencies like a witness being too ill to attend the Court or is a resident beyond the local limits of jurisdiction of the court. Of course a party is at liberty to produce such witnesses in court. It is important to remember that the power of Court to issue commissions is discretionary (see party examining the witness tenders such evidence in the court and succeeds in showing that the circumstances under which the witness was examined on cormmission continue to exist at the time of the trial. In N. Mohamed Hussain Sahib v. The Chartered Bank, Madras, : AIR1965Mad266 , the examination of a witness on commission was held not to affect Rule 2 of Order xviii, and it was observed thus:
'(The) examination of a witness de bene esse or on commission cannot affect the question of right to begin the case, Even in Criminal Cases, an accused person could examine on commission a witness. who is about to leave the jurisdiction of the Court. It would be an astounding proposition of law to contend in such cases that the accused should lead the evidence before the prosecution proves its case. It should be noted that the plaintiff would be entitled to insist upon Mr. Pryce being examined as a witness during the trial of the suit if he happened to return from England land happened to stay at Madras at the time in spite of the fact that he was already examined de bene esse. Hence the question of admitting the evidence given by Mr. Pryce before the Master could arise only when the first defendant adduces oral evidence and wants to mark the evidence given by Pryce as its evidence.'
The defendant, thereforee, has no basis to contend that to get the evidence of his witnesses recorded on commission before the trial is set down for hearing, it is a departure or a contravention of Rule 2 of Order xviii.
Now the relevant rules of Chapter X of Delhi High Court (Original Side) Rules may be noticed. Rule 1 reads thus:
'l (a) Applications for issuance of commissions to examine witness shall be made by the parties within 30 days from the date of the settlement of issues and &ball; be supported by an affidavit disclosing the nature of the evidence each of the witness is expected to give, If the witnesses are sought to be examined on interrogatories, the interrogatories will be submitted along with the application Copies of such application, affidavit and interrogatories shall be served on the opposite party.
(b) No application for the issuance of such commission shall be entertained after the suit or matter has been set down for trial unless the court is satisfied that the application could not have been made earlier, and in that event the court may make such order as to costs or otherwise as it deems fit.
Rule 3 is in the following terms:
'3. Final hearing may be fixed after return of commission: If the application referred to in Rule I or 2 is granted. the matter may not be set down for final disposal before the return of the commission, except by order of the Court,'
By framing these rules this court has not departed from any of the wellestablished notions of justice. It is in keeping with the concept of a continuous trial There is nothing new in these rules nor they are innovations. Similar rules were enacted long ago by the High Courts of Bombay, Calcutta and Sind, and have been continuously followed. Rule 26 at Chapter Ii of 'The Rules of the High Court at Bombay (.Original Side) 1957' is in the following terms:
'26, Suits in which orders for commission of witnesses are made and no definite date for postponement therein is fixed shall be considered as stayed suits, and shall be removed from the General List to the Stayed List B. Such suits after the return of the commission may. by directions of the Prothonotary and Senior Master, be restored to the General List.' Rule 30 of Chapter X of the Rules of the High Court at Calcutta (Original Side) 1914' reads thus:
'30. Unless otherwise ordered, a commission to examine witnesses issued in a suit or proceedings shall, until the return or expiration of the time for the return thereof, operate as a stay of such suit or proceeding.' The relevant rule of the Rules of the Chief Court at Sind (Original Side) 1944; is in the same terms as Rule 3 of this Court reproduced above.
11. The defendant contends that by requiring him to examine his witnesses on commission before the plaintiff closes his case amounts to a denial of natural justice. I do not see which principle of natural justice stands violated. He forgets that the normal rule, as already stated, is that he should produce the witnesses in court and that examination of witnesses on commission is an indulgence shown to him.
12. Another contention of the defendant is that he should not be forced to disclose his evidence before the plaintiff on whom the onus of proving the issues lies, has led his evidence. It is submitted that it is rather not possible for him to produce the evidence unless he knows the evidence he is required to meet, and, for all that matters, he might be wasting his time and money in case the opposite party does not produce any evidence. I am afraid there is no substance in these contentions. I have already pointed out that the evidence of a witness recorded on commission does not automatically become evidence in the case nor it amounts to leading evidence. He knows the case of the plaintiff. He knows all the documents on which the plaintiff relies. The witnesses of the plaintiff are also known to him since the plaintiff has already filed a list of witnesses in accordance with the rules of this Court. The only thing which he may not know is what a particular witness of the plaintiff may say in Court. This cannot be a valid reason for not examining his witnesses on commission. After all a witness is required to tell the truth, the whole truth and nothing but the truth. If a witness knows anything about the matter in controversy between the parties he should at all times be in a position to state the full truth. It is not expected of a party to produce tailor made evidence in order to defeat the opposite party.
13. The last contention is that the rules in question of this Court amend the provisions of Sections 101 to 103 of the Evidence Act and so they are ultra vires. A bare look at these sections would show that the contention is without any basis. These sections relate to burden of proof which is not in any manner affected by the rules. Similarly a reference to Section 135 of the Evidence Act by the defendant is uncalled for since this section only lays down that the order of production and examination of witnesses shall be regulated by the law and practice for the time being relating to criminal and civil procedure respectively, and in the absence of any low by the discretion of the Court. The relevant provision of the Code of Civil Procedure has (already been discussed by me in detail and it is needless to repeat that the Code provides for a continuous trial once the hearing of the suit has begun.
14.The applications, thereforee, are dismissed with no order as to costs.
15. Applications dismissed.