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Atchyutana Pitchaiah Sarma Petitioner v. Gorantla Chinna Veerayya And Others
Structured Summary of the Opinion — Civil Revision Petition on Exclusion of Parties and Witnesses
Factual and Procedural Background
The suit was originally filed in 1951 and, after a protracted history, was being taken up again by the lower Court. The fourth defendant in the suit is the petitioner in this Civil Revision Petition. At the stage when the plaintiff's witnesses had been examined and cross-examined, the fourth defendant was present in Court. When the defendants began to call their witnesses, the first defendant's witness (D.W.1), Nalluri Yacoob, was put into the witness-box and, at that time, the fourth defendant was still in Court. The witness stated: “I know the suit lands”.
The plaintiff's counsel orally objected to the fourth defendant remaining in the Court-hall while the defence witnesses were examined. The defendants' counsel, Sri M. Venkateswarlu, stated he needed instructions and objected to the fourth defendant being excluded. The lower Court ordered the fourth defendant to leave the Court-hall. Thereupon the defendants' counsel declined to proceed and indicated he would challenge the matter by revision to the High Court. The examination was stopped and the matter adjourned. The fourth defendant filed this Civil Revision Petition challenging the lower Court's power and jurisdiction to order him out of the Court-hall while he was instructing his counsel regarding the examination of his witness.
In the High Court the petitioner filed an affidavit stating that he was in charge of the defence relating to the account sought of the trustees, was instructing his counsel throughout, and that the managing trustee (the first defendant) could not do so because of high blood pressure. The petitioner asserted that exclusion would inconvenience counsel and render the defence difficult, and alleged the plaintiff's objection was mala fide to make the defence difficult.
The plaintiffs filed a counter-affidavit (by Muddana Venkatasubbaiah, the fifth plaintiff) stating that the fourth defendant was himself a prospective witness and, because of his personal influence, other witnesses might be embarrassed to depose against him; further, that he might attempt to patch up the evidence when his turn to testify came. The lower Court's order did not state whether these allegations were put before or considered by it. The High Court therefore addressed whether the lower Court had the power to exclude parties and their witnesses from the Court-hall during trial.
Legal Issues Presented
- Whether a Court has the power to order unexamined witnesses (including parties who are prospective witnesses) to leave the Court-hall until they are called to give evidence.
- Whether a party to litigation who will also give evidence may be ordered out of the Court-hall while his other witnesses are examined, unless he first gives his own evidence.
- What procedural steps a Court must take before ordering a party out of the Court-hall when objections are raised about that party's presence during the examination of other witnesses.
Arguments of the Parties
Petitioner's Arguments (fourth defendant)
- Reliance on the observation in Vemurtddi Babureddi, In re (Sir John Wallis, C.J.), that “the rule as to the exclusion of witnesses from Court until they have been examined ... does not extend to the parties themselves in civil cases, so long as they conduct themselves properly.”
- The petitioner (being a party) was entitled to remain in Court to instruct his counsel — particularly necessary in an accounting matter where technical details required his frequent instructions.
- The lower Court gave no reasons for ordering him out, and the order appeared to have been made merely because he was a party.
- Exclusion would inconvenience counsel and render the defence difficult because the petitioner had special knowledge of accounting details which he had to convey to his counsel.
Respondent's Arguments (plaintiffs)
- The plaintiffs' counter-affidavit stated that the fourth defendant was himself to be a principal witness and, because of his personal influence, other witnesses might be embarrassed to depose against him; he might also attempt to patch up evidence when he himself came to testify.
- On that basis it was asserted that it was proper to ask the fourth defendant to leave the Court-hall while other defendant witnesses were examined.
- The respondent's counsel (Sri M. Jagannadha Rao) relied on authority (including a passage from Wigmore on Evidence) showing the difficulty of balancing a party's right to be present with the utility of exclusion when the party is a prospective witness, and pointed to solutions adopted elsewhere (for example, requiring the party to give his evidence first).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vemurtddi Babureddi, In re (observation of Sir John Wallis, C.J.) | The rule excluding witnesses from Court until examined does not extend to parties in civil cases so long as they conduct themselves properly. | The Court noted this observation (described as an obiter in the earlier case) and acknowledged it has great weight. The petitioner relied on it to argue parties should ordinarily be allowed to remain in Court to instruct counsel. |
| Selfe v. Issaccson (1851) 1 F. & F. 194 | Authoritative basis (as cited in Halsbury) for the proposition that a judge may order witnesses in the case to leave the Court until called for. | The Court relied on the authority cited in Halsbury to support the proposition that the Court has power to order unexamined witnesses out of Court at any time during the trial on application of either party. |
| Outron v. Outran | Held that parties, being competent witnesses, like other witnesses may be excluded from the Court during the examination of any other witnesses. | The Court cited this authority to show that some precedent exists for treating parties as subject to exclusion like other witnesses. |
| Jarat Kumari Dassi v. Bissesur Dutt (Woodroffe, J.) | Held that the Court has always had power to regulate the order of production and examination of witnesses under section 135 of the Evidence Act. | The Court relied upon this holding to support its view that under section 135 it can prescribe the order of examination and hence can require a party-witness to give evidence before other witnesses or else be excluded while others give evidence. |
Court's Reasoning and Analysis
The Court proceeded in two main analytical steps: (1) whether the Court has power to order unexamined witnesses out of the Court-hall during trial; and (2) how that power is to be reconciled with a party's right to be present when his case is being tried, particularly when the party is also a prospective witness.
On the first point, the Court held that although neither the Evidence Act nor the Codes of Civil and Criminal Procedure expressly provide for excluding witnesses from Court, courts have an established practice of doing so and possess an inherent power to regulate their business and make orders necessary for the ends of justice. The Court relied on authorities cited in Halsbury (including Selfe v. Issaccson) which state that, on application of any party, a judge may order witnesses to leave the Court until called, and that unexamined witnesses may be ordered out of Court at the request of either party. From these authorities the Court concluded that it is clear that the Court has power to order unexamined witnesses out of Court at any time during the trial.
On the second point, the Court acknowledged the strong and well-established right of a party to remain in Court while his suit is being tried; it also reaffirmed the Court's inherent power to order persons who are to give evidence to leave during the examination of other witnesses. The difficulty lies in reconciling these two rights. The Court observed that section 135 of the Evidence Act authorises the Court to regulate the order in which witnesses are to be produced and examined; Jarat Kumari Dassi v. Bissesur Dutt was cited as holding that the Court has always had this power under section 135.
The Court stated the proper procedure to reconcile the competing interests: where a party is also a witness, the Court can require that party to give evidence before the Court allows his other witnesses to be examined. If the party is unwilling to give his evidence first, the Court may order him out of the Court-hall while his other witnesses give evidence. This procedure preserves the party's right to be present (because he can be given the opportunity to testify first) while enabling the Court to prevent any suspicion that the party might later “patch up” the weaker parts of other witnesses' evidence.
The Court further addressed practical contingencies: if the party is conducting his own case without counsel, the party can examine himself first and then proceed with his other witnesses; the same procedure applies to avoid suspicion of tampering with witness testimony.
Applying these principles to the present case, the Court found that the lower Judge had not given any reasons for ordering the fourth defendant out of the Court-hall when D.W.1 began to give evidence, nor is it clear whether the lower Court inquired whether the petitioner wished to give evidence on his own behalf. The High Court held that the lower Court should have ascertained whether the petitioner wanted to testify and, if so, directed him to testify first. Because the lower Court did not follow this procedure or show that it considered the competing claims, the High Court set aside the lower Court's order and remitted the matter for reconsideration in light of the observations in the judgment.
The Court additionally emphasised that it always retains the power to order any party, witness, or person present to leave the Court-hall if that person misbehaves or if his presence is likely to embarrass or influence witnesses.
Holding and Implications
Holding: The Civil Revision Petition is allowed; the order of the lower Court directing the fourth defendant to leave the Court-hall is set aside and the matter is remitted to the lower Court for reconsideration.
Implications:
- Direct effect on the parties: The lower Court's order excluding the fourth defendant was set aside and the case is remitted to the lower Court to reconsider the exclusion after hearing learned counsel for both sides and applying the procedure laid down in this judgment (i.e., ascertain whether the party wishes to testify and, if so, require him to testify first or otherwise consider exclusion).
- Procedural guidance: The Court articulated the procedural rule that, under section 135 of the Evidence Act and the Court's inherent powers, where a party is also a prospective witness the Court may require that party to give evidence before his other witnesses; if the party refuses, the Court may exclude him while other witnesses are examined. The Court also confirmed its general power to exclude any person who misbehaves or whose presence would likely influence witnesses.
- Precedential effect: The judgment provides binding direction as to the procedure a trial Court should follow before excluding a party who is a prospective witness. The opinion sets aside the lower Court's order for failure to follow that procedure and remits the matter for reconsideration in light of the Court's observations.
Revision allowed; matter remitted.
Judgment delivered by M.S.K.
In this Civil Revision Petition a question of general importance as to the power of Court to exclude from the Court parties and their witnesses during the trial arises for decision. The suit was filed in the year 1951 and after a chequered career was taken up again by the lower Court. The fourth defendant in the suit is the petitioner in this, Civil Revision Petition. It is stated that the examination and cross-examination of the plaintiff's witnesses was over and that the fourth defendant was present when they were examined. Then one Nalluri Yacoob was put in the witness-box as the first witness for the defendants. At that time also the fourth defendant was sitting in Court. The witness stated “I know the suit lands”. Then the counsel for the plaintiff objected to the fourth defendant sitting in the Court, but, Sri M. Venkateswarlu, the learned counsel for the defendants stated that he has to get instructions and that he objects to the fourth defendant being sent out of the Court. The Court erdered the fourth defendant to leave the Court hall. On that Sri Venkateswarlu stated that he would not proceed with the suit and that he would carry the matter in revision to the High Court. Thereon the examination of the witnesses was stopped and the case was adjourned and this revision was filed by the fourth defendant questioning the power and the jurisdiction of the Court to order him out of the Court-hall when he was instructing his counsel with regard to the examination of his witness. It may be noted that the objection raised by the plaintiff's counsel to the presence of the fourth defendant in the Court-hall when the latter's witnesses were being examined was only oral. But, here, in the High Court, in the affidavit filed by the fourth defendant in support of the application for stay of trial of the suit pending this Civil Revision Petition, it is stated that the fourth defendant was in charge of the defence relating to the account sought of the trustees and that he was instructing his counsel throughout. The first defendant-managing trustee could not do so as he was having blood-pressure. It is also stated that if he is ordered out of the Court-hall it will not only inconvenience his counsel, but will render the defence difficult because there are details in the matter of the account sought, of which the fourth defendant is more aware than others and of which he had to remind his counsel from time to time and that the objection to his presence taken by the plaintiff was mala fide and was intended only to make the defence difficult. To this affidavit, a counter-affidavit was filed by Muddana Venkatasubbaiah, who is the fifth plaintiff. In paragraph 3 of the counter-affidavit it is stated that the fourth defendant was asked to go out of the Court-hall while the examination of his other witnesses was going on, because the fourth defendant himself is a witness for the defendants and due to his personal influence the other witnesses may feel embarassed to depose against him. Hence, it is stated, that while he himself is to be a principal witness, if he were allowed to be present, he would try to patch up the evidence when his turn comes. It is not clear from the order of the learned Judge whether these allegations and counter-allegations were made before him and whether he considered these matters before he ordered the fourth defendant out of the Court-hall when his other witnesses were being examined. Whatever, it be, it is necessary to consider whether the Court has got the power to order parties and their witnesses out of the Court-hall during the trial of the suit when the examination of the witnesses is going on.
2. Sri B.V Subrahmanyam, the learned counsel for the petitioner, relied upon an observation in Vemurtddi Babureddi, In re.1, Sri John Wallis, Kt., G.J, observed at page 917 as follows:—
“The rule as to the exclusion of witnesses from Court until they have been examined is not without exceptions. It does not extend to the parties themselves in civil cases, so long as they conduct themselves properly…………”
3. The learned Chief Justice referred to Roscoe's Nisi Prius, Volume I (page 159) 18th Edition, and also pointed out that the same rule applies in criminal cases (Roscoe's Criminal Evidence, page 114, 13th Edition). It is also stated that it has never been suggested that the fact that in England the accused is now a competent witness, justifies his exclusion from the Court during the trial. The present question did not really arise in that case and this observation of the learned Chief Justice is only an obiter. But it is entitled to very great weight. In Roscoe's Nisi Prius, Volume 1, at page 159, it is stated that a party can now be a witness, and that “as such he is perhaps liable to be ordered out of the Court”. Relying upon the observations of Sir John Wallis, Kt., C.J, the learned counsel for the petitioner contended that the petitioner being a party is entitled to remain in Court when his witnesses are being examined in order to instruct his counsel especially in a case like this where the evidence relates to accounting. He also pointed out that no reasons are given by the lower Court for ordering his client out of the Court-hall and that what appears from the order is that his client was ordered out of Court merely because he is a party to the suit.
4. The first question for consideration is whether a Court has got power to order unexamined witnesses out of Court until evidence is taken. Neither the Evidence Act nor the Codes of Civil and Criminal Procedure contain any section or rule for ordering witnesses out of Court although it is generally done by the Courts as a matter of practice. In my view, the Court has inherent power to regulate the business of the Court in the way it thinks best or to make any order that may be necessary for the ends of justice. I am also of the opinion that even in the absence of any specific provision in any enactment, the Court has power to order that no witness who has to give evidence should be present when the depositions of other witnesses are being taken until he himself is examined as a witness in full. In Halsbury's Laws of England, Volume 15, Simonds Edition, at page 439, the rule of patrice is stated to be that at any time during the course of a trial, on an application of any party the Judge may order witnesses in the case to leave the Court until called for. The authority for this is stated to be Selfe v. Issaccson . 1851 1 F. and F. 194. Again in Halsbury's Laws of England, Volume 10, at page 470, it is stated that unexamined witnesses may be ordered out of Court at the request of either party. It is therefore clear that the Court has power to order unexamined witnesses out of Court at any time during the trial on the application of either party.
5. The next question that arises for consideration is whether a party to a litigation when he also wants to examine himself as a witness can be ordered out of the Court-hall unless he examines himself first as his own witness. Sri Subrahmanyam contended that he cannot be so ordered for the reason that parties are entitled to be present in the Court during the trial of the suit and in support of this he relied upon a statement in Roscoe's Criminal Evidence, 16th Edition, page 145, to the effect that a defendant, if a witness or not, cannot be ordered out of Court while he behaves himself becomingly. Sri M. Jagannadha Rao, the learned counsel for the respondent, drew my attention to a passage in “Wigmore on Evidence” 3rd Edition, Volume 6. In the Chapter relating to Sequestration of Witnesses, it is pointed out at page 364 as follows:—
“The case of the party himself is more difficult. It is apparent that the danger of an attempt to falsify testimony and the utility of sequestration to expose it are most emphatic for a party who is a prospective witness. On the other hand, the party's aid in the conduct of the caus may be indispensable, and his absence is in any case hardly consistent with his general right to protect his interests by watching the conduct of the trial; in the United States, or in most parts of it, these considerations (looking to the ordinary relations of client and counsel) are probably more forcible than in England, where the counsel has full independence and professional authority. The simple solution, avoiding both horns of the dilemma, would be to exempt the party from the order of exclusion, but to require him to take stand first of the witnesses on his side; on the principle that, though he has the right to be present, yet he has also the duty to do all that is feasible towards preventing suspicion and sub-serving the opponent's right to sequestration. This particular solution, however, seems not yet to have been reached by any Court. A few Courts treat the party upon the footing of other witnesses; but others declare him entitled of right to remain, ordinarily or invariably, and the latter view has been generally preferred in legislation.”
6. It is also held in Outron v. Outran, that as parties are competent witnesses, they like the other witnesses may be excluded from the Court during the examination of any other witnesses.
7. It is undoubtedly true that a party to a litigation has got the right to remain in Court while the trial of the suit is going on and it is equally well established that the Court has got inherent power to order any person who has to give evidence out of Court-hall when other witnesses are being examined until that person is called to give evidence. The difficulty is how to reconcile these two rights with each other. Under section 135 of the Evidence Act the order in which witnesses are to be produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and in the absence of any such law, by the discretion of the Court and it has been held in Jarat Kumari Dassi v. Bissesur Dutt, by Woodroffe, J., that the Court has always the power to do this under section 135 of the Evidence Act. In my view, the proper procedure to be followed in cases like this is as follows: Since, under section 135 of the Evidence Act, the Court has the power to prescribe the order in which witnesses are to be examined, where a party is also a witness, the Court can require him to give evidence before he examines his other witnesses. If he is not willing to do so, the Court can order him out of the Court-hall when his other witnesses are giving evidence. This procedure ensures to the party his right to be present in Court when his suit is being tried. At the same time, it does not interfere with the Court's power to prescribe the order in which the witnesses are to be examined. Sri Subrahmanyam poses the question as to what is to happen if the party himself is conducting the case without the aid of any counsel. The answer is simple. He can examine himself first and then examine his other witnesses. In my view, even in such a case, this is the procedure to be followed so as to avoid any suspicion that the weak parts in the evidence of any other witnesses will be patched up later by the party himself when he enters the witness-box.
8. In the present case, the learned Judge has not given any reasons for ordering the fourth defendant out of the Court-hall when D.W 1 started to give evidence for him without ascertaining whether he wants to give evidence on his behalf. In my opinion, the Court has to consider whether the claim made by one party to exclude the other party from the Court-hall is well-founded and also to consider the objections of the other party and then decide whether it is necessary in the interests of justice to order any party out of the Court-hall during the examination of witnesses. If the Court thinks that the presence of the party in the Court-hall when his other witnesses are being examined will not ensure a fair trial, it is certainly competent for the Court to order that party to leave the Court-hall when his other witnesses are being examined unless he examines himself in the first instance. The order of the lower Court doe not show that he had in his mind the principles stated above. In my view, the Court should have ascertained from the petitioner whether he wants to examine himself as a witness and if he wants to examine himself the Court has to direct him to examine himself first. This was not done by the lower Court. I, therefore, set aside the order of the lower Court and direct it to reconsider the matter after hearing the learned counsel for the plaintiffs and defendants and make such order as it thinks fit in the light of the observations in this judgment. The Civil Revision Petition is thus allowed and the matter remitted to the lower Court. I wish to point out that the Court has always got the power to order any party or a witness or any person present in Court to leave the Court-hall if he does not behave properly, or if his presence is likely to embarass or influence any of the witnesses.
9. M.S.K
Revision allowed; matter remitted.
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