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Om Prakash Vs. Kamal Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 33 of 1982
Judge
Reported inAIR1982Raj317; 1982()WLN426
ActsCode of Civil Procedure (CPC) , 1908 - Order 18, Rules 2 and 5
AppellantOm Prakash
RespondentKamal Kishore and ors.
Appellant Advocate N.P. Gupta, Adv.
Respondent Advocate Dinesh Maheshwari, Adv.
DispositionPetition allowed
Excerpt:
.....is examined on commission. any departure from the established procedure is likely to vitiate the proceedings as the , purity of judicial record may be sullied.;revision allowed - - it cannot be said that the plaintiff was at fault if his counsel walked out o the court for some good ground or even without any justifiable reason. 13, 1980 failed to look into the affidavit of the parties and also failed to take into consideration the fact that when the plaintiff's learned counsel had left the court the plaintiff was unable to proceed with the case unless he was afforded an opportunity to engage another counsel. and how could the plaintiff engage another counsel when he was required to remain present in the court, as he was subjected to cross-examination ? the plea of the plaintiff..........presiding officer was busy otherwise. while the cross-examination of the plaintiff was going on, learned counsel for the plaintiff objected to a question which was asked in cross examination by the learned counsel for the defendants on the ground that the -same was irrelevant. according to the plaintiff, the matter was referred to the presiding officer, who behaved in such a rough manner which enraged the learned counsel for the plaintiff so much that he walked out of the court. the plaintiff thereafter did not reply to the further questions put to him in cross-examination on account of the absence of his counsel, but the statement of the plaintiff was closed. the plaintiff was also unable to examine his other witnesses in the absence of his counsel and the evidence of the plaintiff.....
Judgment:
ORDER

Dwarka Prasad, J.

1. This revision petition has been filed against the order passed by the Chief Judicial Magistrate-cum-Civil Judge, Bhilwara closing the evidence of the plaintiff.

2. The suit was fixed on Nov. 13, 1980 in the trial court for recording the evidence of the plaintiff. The statement of the plaintiff was recorded on that date and it appears from the record that the plaintiff refused to sign the statement. The trial court closed the evidence of the plaintiff on the alleged ground that the plaintiff was not pre-pared to examine any other witness, The plaintiff filed an application in the trial court on the next date of hearing, i.e. on Feb. 19, 1981 stating that on the earlier date a clerk of the court recorded the statement of the plaintiff and the Presiding Officer was busy otherwise. While the cross-examination of the plaintiff was going on, learned counsel for the plaintiff objected to a question which was asked in cross examination by the learned counsel for the defendants on the ground that the -same was irrelevant. According to the plaintiff, the matter was referred to the Presiding Officer, who behaved in such a rough manner which enraged the learned counsel for the plaintiff so much that he walked out of the court. The plaintiff thereafter did not reply to the further questions put to him in cross-examination on account of the absence of his counsel, but the statement of the plaintiff was closed. The plaintiff was also unable to examine his other witnesses in the absence of his counsel and the evidence of the plaintiff was also closed. The plaintiff's application was supported by an affidavit in which he stated that the plaintiff's other witnesses were present in the court but in the absence of the counsel, the plaintiff was unable to examine his witnesses and the plaintiff expressed his helplessness before the court regarding examination of his witnesses in the absence of his counsel.

3. The defendant filed a reply to the plaintiff's application and Kamai Kishore defendant also filed an affidavit. 11 is apparent from a perusal of the affidavit of Kamal Kishore that the plaintiffs learned counsel left the court while the plaintiff's statement was yet incomplete, although according to him the direction of the court disallowing his objection was proper. The defendant Kamal Kishore also stated 'hat the cross-examination of the plaintiff was completed and it was not closed by the court. He further stated that the plaintiff himself had closed his evidence. I have also perused the statement of the plaintiff which was recorded on Nov. 13 1980. There is no doubt that it has been written by a clerk although the Presiding Officer has appended a note that it was written in his presence, on his dictation and within his hearing. But no reason has been assigned why the learnedCivil Judge did not record the statement of the plaintiff himself. After the learned counsel for the plaintiff is said to have walked out of the court, the plaintiff did not reply to any one of the questions which were put to him and as such it cannot be said that his statement was completed. Moreover, the plaintiff did not sign the statement which was recorded on November 13, 1980 and as such the said unsigned statement cannot be read in evidence. It is apparent from a perusal of the affidavit of the plaintiff that the plaintiff's other witnesses were present in court on that day and this fact was not contested by defendant Kamal Kishore in his affidavit.

4. In these circumstances, the plaintiff was unable to examine those witnesses because his learned counsel had gone out and was not available in the court to assist him in the examination of his witnesses. Yet the learned Civil Judge closed the evidence of the plaintiff. In my view, whatever might have been the reason for the unusual conduct on the part of the learned counsel for the plaintiff and even if his attitude might have been unreasonable in walking out of the court, yet in any event, learned Civil Judge ought to have afforded the plaintiff sufficient opportunity to lead his evidence and the plaintiff's statement also should have been completed properly. The learned Civil Judge should have allowed the plaintiff, in such circumstances, a reasonable opportunity at least to engage another counsel. The plaintiff should not have been made to suffer because of the attitude or behaviour of his counsel in leaving the court, either on some provocation or even for insufficient reason. It cannot be said that the plaintiff was at fault if his counsel walked out o the court for some good ground or even without any justifiable reason. Yet, the justice in the case required that the plaintiff should have been allowed by the trial court an opportunity to engage another counsel for fairly prosecuting his case further.

5. After a consideration of the ertire matter I am strongly of the view that the manner in which the learned Civil Judge, Shri Govind Narain Sharma conducted the proceedings in the case was wholly unsatifactory and the closure of the evidence of the plaintiff by him was wholly improper and unjustified. Theplaintiff stated in his affidavit that his witnesses were presem in the court and the same was not controverted by the defendant Kamal Kishore in the affidavit submitted by him in the trial court. How could a party to a case be expected to examine his other witnesses if his counsel left suddenly during the course of the proceedings on that very day? I am not determining here the reasonableness or justification of the attitude adopted by the learned counsel for the plaintiff in walking out of the court and whether there was sufficient justification for the same or the behaviour of Presiding Officer of the court gave rise to such a situation. But in any event, the fact remains that the counsel for the plaintiff left the court suddenly, leaving the plaintiff in midstream. In such circumstances, the case should not have been proceeded with further on that very day and the plaintiff ought to have been afforded a reasonable opportunity and sufficient time for engaging another lawyer and for such counsel preparing the brief. The statement of 'be plaintiff as also of his witnesses should have been recorded after the plaintiff had an opportunity to engage and brief another lawyer.

6. The trial court, while refusing to reopen the evidence of the plaintiff observed that after the plaintiff's learned counsel had left the court, the cross-examination of the plaintiff continued for 15 to 20 minutes but no other counsel appeared on behalf of the plaintiff. The fact was completely lost sight of that the plaintiff himself could not leave the court because his statement was being recorded and he was being subjected to cross-examination. How could the plaintiff engage another lawyer while he was himself required to remain present in the court for continued cross-examination? After the plaintiff refused to answer the questions put to him in cross-examination and also refused to sign the statement, no time appears to have been allowed by the learned Civil Judge to the plaintiff to engage another counsel. The allegations made by the plaintiff in his affidavit dated Feb. 19, 1981 have not been controverted by defendant Kamal Kishore that the plaintiff's statement was being recorded by the clerk while the Presiding Officer was busy otherwise and they may be accepted to berue. It must be observed in such circumstances that the proceedings in the ase were conducted by the learned Civil Judge Shri Govind Narain in a highly mproper manner, because even if the Presiding Officer did not record the statement of the plaintiff in his own landwriting, yet it must have been aken down in writing in the presence of and under the personal direction and superintendence of the Presiding Officer, as required under Order 18, Rule 5 C.P.C. The presence of the Presiding Officer, while the statement of a witness is be-ng recorded in a court of law, does not mean merely his physical presence in the court room but the presiding Officer must be attentive to the proceedings in the case and to the deposition of the witness and it is not permissible that he might be doing some other work while the statement of the witness was being recorded by the clerk of the court without the intervention of the Presiding Officer. Such a practice if it exists must be strongly deprecated. The learned Civil Judge has exhibited utter ignorance of the basic principles of procedure relating to the recording of evidence in civil cases. The personal attention of the Presiding Officer is necessary, even when the deposition of a witness is being recorded by an officer of the court is apparent from the provisions of the Order 18, Rule 5 CPC which provide that the evidence of each witness has to be recorded not only in the presence of the Judge but also under his personal direction and super-intendence. The use of conjunctive 'and' in Clause (1) of Sub-rule (a) of Rule 5 of Order 18 C.P.C. goes to emphasise that the mere physical presence of the presiding Officer in the court room is not sufficient in law, but the deposition of each witness in a civil case, which is appealable, has to be recorded under the personal direction and superintendence of the Judge. Ordinarily, the presiding Officer of a court should record the statement of a witness in his own handwriting, unless it is being taken down directly on type-writer on the dictation of the Judge himself or the Judge is unable to take down the deposition of the witness in his own handwriting on account of some physical infirmity or for some other reasons to be recorded. But even when an officer of the court is taking down the state-ment of the witness, then the same should be recorded under the personal direction and superintendence of the Judge. This is imperative to maintain the sanctity of the record of the courts and every deposition of a witness examined in a court and not recorded by the Judge himself should be taken down on his dictation except when the witness is examined on commission. Any departure from the established procedure is likely to vitiate the proceedings as the purity of judicial record may be sullied.

7. As the evidence of the plaintiff was wrongly closed by the trial court and no opportunity was given to the plaintiff to engage another counsel for conducting the case further on his behalf after his counsel left the court suddenly, the trial court was not at all justified in refusing to reopen the plaintiff's evidence. The learned Civil Judge, while rejecting the application of the plaintiff for reopening his evidence, had laid emphasis on the conduct of the plaintiff that he refused to answer the questions asked to him m cross-examination and that he refused to examine his other witnesses. It may be observed that the learned Civil Judge, who had succeeded the Presiding Officer who passed the order closing plaintiff's evidence on Nov. 13, 1980 failed to look into the affidavit of the parties and also failed to take into consideration the fact that when the plaintiff's learned counsel had left the Court the plaintiff was unable to proceed with the case unless he was afforded an opportunity to engage another counsel. The trial court acted in a wholly unjustified manner in closing the evidence of the plaintiff on that very day without giving him an opportunity of engaging another counsel and of seeking his advice for the future conduct of the case. How could a party be expected to examine his other witnesses when his counsel went out in the course of the proceedings before the court on that very day The plaintiff had no alternative but to say that he was unable to examine his other witnesses. And how could the plaintiff engage another counsel when he was required to remain present in the court, as he was subjected to cross-examination The plea of the plaintiff that he was not afforded sufficient opportunity to engage another counsel, therefore, appears to be well-founded and has been wrongly rejected by the trial court.

8. In the result, the revision petition is allowed. The orders passed by the trial court on Nov. 13, 1980 and Oct. 1, 1981 are set aside. The plaintiff's statement should be recorded by the trial court afresh and the plaintiff should be afforded an opportunity to examine his other witnesses as well. The defendant will not suffer on account of the setting aside of the aforesaid orders, as no further proceedings have taken place in the suit since the plaintiff's evidence was wrongly closed on Nov. 13, 1980. The proceedings in the suit shall be re-sumed from the stage at which the proceedings were fixed for on Nov. 13, 1980

9. The parties should appear before the learned Civil Judge, Bhilwara on August 16, 1982 for further proceedings. The learned counsel for the parties are present and they should inform their respective parties about the date fixed for the appearance of the parties before the learned Civil Judge, Bhilwara. No further notice is required to be given by the trial court to the parties about their presence in that court on August 16, 1982. The record of the trial court should be sent back to that court immediately.


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