Sultan Saleh Bin Omer v. Vijayachand Sirimal .

1. This petition is for revising the order passed by the 3rd Assistant Judge, City Civil Court, Hyderabad in I.A No. 765 of 1964 in O.S No. 93 of 1963, filed by the defendants.

2. The facts relevant for a determination of the question in controversy may briefly be stated. The suit was filed on the foot of a promissory note, and the defence was that it was not executed in the circumstances stated by the plaintiff, and that it was not supported by consideration. Naturally, the plaintiff had to prove execution, and the defendant had to establish want of consideration. Appropriate issues were framed. On 8-4-1964, the trial of the suit commenced, when P.W.I was examined and the evidence on his side was closed, reserving his right to adduce rebuttal evidence on the issue relating to absence of consideration. After some adjournments, the suit was posted to 4-7-1964 for the evidence of the defendants. On that day, the plaintiff and his advocates were absent, but the Advocate for the defendant was present with only one witness, who was examined in chief. On that day, the case was passed over once because of the absence of the plaintiff's Advocates. Even by the time the chief-examination of D.W 1 was over, the plaintiff's advocates did not turn up, and a petition was filed for adjournment by some advocate, but it was dismissed. The Advocate for the 1st defendant represented that he wanted to examine one more witness who had to be summoned, but who was not summoned for that day. i.e 4-7-1964. That request was also not granted, and the City Civil Judge thereupon noted that the defendant's evidence was closed and the suit was posted for arguments. The plaintiff's advocate then filed the present application. I.A No. 765 of 1964, explaining the unavoidable circumstances in which both the advocates for the plaintiff were absent, and praying for reopening of the trial of the suit, and giving a chance to the plaintiff to cross-examine D.W 1., and an opportunity to the plaintiff to lead rebuttal evidence. This application was allowed by the trial court on the ground that in the circumstances it saw no objection for reopening trial of the suit on payment of Rs. 10/- by way of costs to the defendant.

3. Aggrieved by this order, this revision petition was filed.

4. Sri Suryaprakasam, the learned counsel for the 1st defendant-petitioner, contended that the order re-opening the suit and giving an opportunity to the plaintiff to cross-examine D.W 1 and lead rebuttal evidence is an erroneous and illegal exercise of jurisdiction, and that the circumstances of the case also did not warrant it. He also contended that in view of Or. 18, Rule. 17, C.P.C, Section 151 C.P.C could not be invoked. The argument of the learned counsel was that Or. 18, Rule 17 provides for a situation like the present one, and Section 151 cannot, be invoked. To my mind, this argument cannot be accepted. Or. 18, Rule 17 is in the following terms:

“The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

5. A close reading of this Rule makes it obvious that the right under that Rule to put questions at any stage of a suit, or recall any witness for that purpose, is given to the Court. The Court can put questions to the witness re-called, and no cross examination is ordinarily allowed upon the answers to the questions put by the Judge without leave. The right to act under this rule is not restricted to the Court on its own motion, but may be exercised at the instance of a party. It cannot, therefore, be said that an opportunity to a party to re-call any witness for the purpose of examining, cross-examining or re-examining is governed by Or. 18, Rule 17 C.P.C I, therefore, hold that if circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C

6. The next argument on behalf of the petitioner is that admittedly the trial judge closed the trial and posted the matter for arguments, and that he had no jurisdiction to re-open the trial of the suit and permit the plaintiff to cross-examine D.W 1, and adduce rebuttal evidence.

7. That argument is refuted by the respondent (Plaintiff) on the ground that Civil Procedure Code does dot contemplate the closing of a case or posting a suit for arguments, and that after the filing of the pleadings, the only other stages recognised in the trial of a suit are; (1) the first hearing, (2) the hearing and (3) pronouncing the judgment on a future date, if it is not pronounced immediately after the hearing, and that till the suit is posted for judgment, the hearing continues. I shall now examine the validity of the respective contnetions.

8. There is an unwarranted practice obtaining in some of the subordinate Courts, which is evidently adopted in this case, of treating the completion of the evidence as closing of the trial, and hearing arguments as a separate stage of the trial, and that a prayer for examining any witness or receiving a document after closing of the evidence, though it be before or during hearing the arguments, requires a re-opening of the trial. In fact, it is on that assumption that the plaintiff in his petition, apart from requesting for an opportunity to examine D.W 1 and adduce further evidence also prayed for re-opening of the trial. This is not correct.

9. Heating arguments in a suit is not a distinct stage of the hearing comtemplated by the C.P.C It is a part of the hearing, just as much as the recording of evidence. It follows that before arguments are concluded, a party is entitled to request the Court to receive any further oral or documentary evidence, and it is left to the Court, in the exercise of its discretion, to grant it or not. But no objection can be raised to the exercise of that disrcetion, at or during arguments, on the ground that it amounts to reopening of the trial already closed. The learned counsel submitted that the hearing of the suit is not closed so long as it is not posted for judgment, and that though the plaintiff also prayed for re-opening of the suit it is nothing more than a request for an opportunity to cross-examine D.W 1. This submission, in my view, is correct, and I am fortified in this conclusion by the provisions of the C.P.C

10. Or. 9 deals with examination of parties by the Court at the first hearing of the suit, to ascertain whether they admit or deny such allegations of fact as are made in the plaint or the written statement. Or. 11 deals with discovery and inspection. Or. 10, Rule 1 is to the effect that at the frist hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies the allegations of fact in the pleadings, and record such admissions or denials. Or. 12 deals with admissions and Or. 13 with the production and impounding of documents. Or. 14 lays down the procedure for settlement of issues and determination of suit on issues of law or on issues agreed upon. Or. 15 provides for a disposal of the suit at the first hearing.

11. Or. 15 R. 1 states “where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment”.

12. Or. 15 R. 3 reads thus:

“Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as herein-before provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:

Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.

(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.”

13. Or. 16 provides for summoning and attendance of witnesses, and Or. 17 deals with adjournments. It is manifest from these provisions that the first hearing of a suit means the day on which the Court goes into the pleadings in order to understand the contentions of the parties, and in suits in which issues have to be framed, the day on which such issues are framed. On that day, the Court looks into the pleadings with a view to understand the contentions of the parties.

14. The title of Or. 18 is, “Hearing of the Suit and Examination of Witnesses”. Rules 1 and 2 of Or. 18 may usefully be extracted.

“1. The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

2. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in 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.

Explanation:— Nothing in this rule shall affect the jurisdiction of the Court, for reasons to be recorded in writing, to direct any party to examine any witness at any stage.”

15. The effect of R. 2 is that the party who has the right to begin, shall state his case and produce evidence in support of the issues, the burden of proving which lies upon him. The other party is then given the right to state his case and produce his evidence and address the Court generally. The party beginning is also given the right to give a reply generally on the whole case.

16. Or. 20, R. 1 states thus:

“The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders”.

17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other hand, according to Or. 15 Rule 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin, and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In cases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finished by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or marking documents, merely on the ground that the trial is closed and the matter is posted for arguments. Whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated.

18. I am supported in this view by the decision in Hans Raj v. Sohan Singh1.. It was observed by Harnam Singh, J., that the expression “hearing of the suit” means the hearing at which the Judge would be taking evidence or hearing arguments, or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it.

19. I, therefore, hold that from the commencement of the recording of evidence till the suit is posted for judgment, if it is not delivered soon after the hearing, constitutes ‘hearing of the suit’, though in the course of the hearing the judge may note the purpose for which the suit is adjourned to a particular date, viz., for examining witnesses on behalf of the plaintiff or the defendant, or for hearing argument on a particular aspect of the case, or arguments at the conclusion of the evidence. In this view, I cannot accept the contention of Sri Suryaprakasam that the trial Court had acted illegally in exercising its jurisdiction in re-opening the suit already closed, for there was no need for any re-opening, when the hearing is not concluded.

20. Then arises the question, whether the circumstances warranted an opportunity being given to the plaintiff to cross-examine D.W 1. On the affidavits filed before him, the learned Assistant Judge was satisfied that the plaintiff's counsel were unable to be present for reasons beyond their control. I agree with him, and hold that in the circumstances, the opportunity was rightly given to the plaintiff to cross-examine D.W 1. As already stated, the City Civil Judge did not grant an opportunity to the defendants to adduce further evidence which they wanted. Since, any way D.W 1 is being cross-examined, and witnesses will be examined on behalf of the plaintiff, I think it just that an opportunity ought to be given to both parties to adduce any further evidence as they may think necessary, without asking for unnecessary adjournments for that purpose.

21. In the result, the Revision Petition is dismissed, subject to the above directions.

22. In the circumstances. I make no order as to costs.

24. Petition Dismissed.