(1) The only question which falls for determination in this appeal is whether Gurdial Kaur appellant (defendant) is the legally wedded wife of Piara Singh respondent (Petitioner).
(2) This appeal is the outcome of a petition filed by Piara Singh for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (No. 25 of 1955) on the allegations that he had been married to Gurdial Kaur about four years earlier and that they had lived as husband and wife for about three or three and a quarter years when Gurdial Kaur's mother went to village Sherpura (the village of Piara Singh) about 9 or 10 months earlier and took Gurdial Kaur away with her on the pretext that the family members wanted to see her. As Gurdial Kaur did not return to the petitioner, he, his father and some other persons constituted a panchayat and went to Raikot (the village of Gurdial Kaur's parents) to persuade the parents of the lady to send her to her husband's house. After some evasive and delaying tactics the girl's parents finally refused to send her to the petitioner's house. On these allegations it was averred that Gurdial Kaur had withdrawn from the society of Piara Singh without any reasonable excuse and also failed to discharge her duties as wife thus necessitating the application for restitution of conjugal rights.
(3) Gurdial Kaur in her reply denied her marriage with piara Singh as also the assertion that she had ever lived with him as his wife. She averred that her elder sister Gurdev Kaur who was married to the elder brother of Piara Singh had been trying to put pressure on her parents to marry the defendant with the petitioner and since her parents did not accede to this request the present proceedings were initiated for the purpose of putting pressure on them. She, however, admitted in her reply that she had gone to village Sherpura along with her mother on several occasions to see her real sister Gurdev Kaur.
(4) Pleadings of the parties gave rise to only one issue namely:
1. Whether Gurdial Kaur is the legally wedded wife of Pyara Singh?
(5) There was no documentary evidence forthcoming in support of the marriage and the issue has therefore, to be determined on the basis of oral evidence alone. The trial Court found in favour of Marriage and decreed the petitioner's claim by passing a decree for restitution of conjugal rights.
(6) Felling aggrieved by the decision of the Court below Smt. Gurdial Kaur has come to this Court in appeal and on her behalf it has been contended that the lower Court has one only erred in believing the evidence of the petitioner's witnesses on wholly untenable grounds but has also ignored certain very material factors in coming to its conclusions. I have in support of the appeal been taken through the evidence led on behalf of Piara Singh.
(After dealing with the evidence of A. W. 1 to 7 His Lordship proceeded:) (10) After recording the evidence of these witnesses, the Court below recorded the evidence produced by Gurdial Kaur and after the conclusion of her evidence the court examined Narinjan Singh, father of Piara Singh, as A. W. 8 and Piara Singh himself as A. WS. 9. The procedure adopted by the Court below is obviously not in accord with the provisions of the Code of Civil Procedure. I however Propose to deal with the effect of the procedure adopted by the Court, after I have discussed the evidence led to behalf of Gurdial Kaur.
(After discussing the evidence led on her behalf His Lordship proceeded:) (11) After the defendant had concluded her evidence and closed her case Narinjan Singh father of Piara Singh appeared as A. W. 8 and Piara Singh himself appeared as A. W. 9 in support of the petition.
(12) Here I cannot help observing that the Court below seems to have ignored the basic principle that the defendant had to rebut the evidence actually produced by the plaintiff on whom the initial onus lay to prove affirmatively that Gurdev Kaur was his legally wedded wife. Order XVIII Code of Civil Procedure contains rules regulating the hearing of us its and examination of witnesses. According to Rule 1 of this Order, the plaintiff in the case in hand had the right to begin as the onus probandi of the issue was on him. It was thus incumbent on the Plaintiff to establish his assertion by positive proof and the Court had to see whether there was adequate proof of his claim before it could consider the necessity of enquiring as to how far the defendants's evidence rebutted that led by the plaintiff.
According to Rule 2, on the date fixed for the hearing of the suit or on the adjourned date of hearing, the plaintiff, who had the right to begin had to state his case and produce his evidence in support of the issue framed, and it was only after the production of his evidence that the defendant had to state her case and to produce her evidence, if any, and then address the Court on the whole case, the plaintiff having the right to reply generally on the whole case. It is true that the parties are entitled to select their own witnesses and the order in which they are to be examined but at the same time, the spirit of the rules definitely suggests that normally speaking the plaintiff must first come in the witness-box to depose to his case to be followed by corroborative evidence. I am not unaware of the practice which has somehow developed and is in vogue in this State, according to which the parties generally come into the witness-box in the end of their evidence so as to be able to fill in any blanks or lacuna which may have been left by their corroborative evidence. Though this practice may not be in positive contravention of the literal import or language of the statutory provisions, yet it is difficult to hold if such a practice is, conducive to better administration of justice.
But be that as it may, the fact remains that there is hardly any provision of law which justifies the procedure adopted by the trial Courts below in the instant case in recording the entire evidence of the defendant before the plaintiff, and, his father, who is no less material a witness than the plaintiff himself, were examined. Indeed to call upon the defendant to rebut the evidence of the plaintiff, when the most material witnesses including the plaintiff himself had not yet been examined, was hardly in consonance with the procedure prescribed by the code. It is quite correct that the Court noted on 7th of October, 1959 that the lawyers had no objection to the witnesses on behalf of the defendants being examined first. It may here be stated that on the 3rd August 1959 the order of the court is that seven witnesses had been examined and that the case was to come up on the 7th of October, 1959 for the statements of the plaintiff and his father and the evidence of the defendant.
On 7th of October the order of the Court is
"counsel for the parties present, the plaintiff and his father also present, and so are defendant's witnesses."But without assigning any reason, the Court below ordered that the statements of the defendant's witnesses should be examined first and noted that the lawyers had no objection. The evidence on behalf of the defendant was thus recorded on 7th October and 23rd October 1959. In the last mentioned date, the Court passed the following order:
"Evidence of the parties has concluded. The plaintiff has applied for medical examination of Gurdial Kaur. The defendant's counsel wants time for reply. Case adjourned to 27th October."
On the next date, the following order was passed :
"parties' counsel present. Reply has been filed. For arguments adjourned to 5th November 1959."
On the 5th of November, the presiding officer was on leave with the result that the case was adjourned to 9th November for arguments. On the 9th of November, the order of the Court is "Arguments heard For orders adjourned to 24th November." On the 24th November, I find the following order on the record:
"Parties counsel Present. The plaintiff has filed an application that by oversight the statement of the plaintiff and his father has not been recorded. Copy of the application has been given to the defendant. For reply to come up tomorrow."
On the 25th of November 1959, after noting the presence of the counsel, the Court stated that reply to the application had been filed and from the record it appeared that the plaintiff did not close his evidence. I however find that in the reply, which was scribed by a petition-writer, Gurdial Kaur had strongly objected to the recording of evidence of the plaintiff and his father at that state and indeed it is expressly stated in this reply that the plaintiff and his father used to be present on every date of hearing and that even on the date on which her evidence was to be recorded they were both present and that now the evidence had been completely concluded and that the Court had also ordered to put in written arguments by the 21st of November 1959 and 24th of November 1959 was actually fixed for order.
This reply, as I have already mentioned, was not signed by the counsel but was thumb-marked by Gurdial Kaur herself, having been scribed by a petition-writer. Thereupon, in accordance with the order of 3rd of August 1959, however permission was granted to the plaintiff to produce himself and his father as witnesses. When, Narinjan Singh and Piara Singh were examined, it is not clear from the record whether or not costs were paid though an order for costs had been passed.
(13) I again cannot help observing that the order of the Court below is most unsatisfactory and unjudicial. No reason has been assigned as to why the plaintiff's evidence was not concluded before the defendants evidence began. The Court does not seem to have devoted to this aspect the attention that it deserved and merely because the counsel had no objection the solemn obligation cast on the Court to ensure fair trial is not discharged and the order is not freed of the infirmity which attached to it, specially when there was absolutely no ground for adopting this, to say the least, highly prejudicial procedure. The position appears to be still worse when one reads the orders passed on the 23rd October 1959, 9th November 1959 24th November 1959 and 25th November 1959. The Court below seems to have been completely unaware of the proceedings in this case when it passed the various orders mentioned above.
(14) It must be remembered that Courts of law and justice are not mere automatons. They must realise that rules of procedure designed to ensure justice are intended to be scrupulously observed and Courts are expected to be vigilant in this respect. The importance of enforcing such rules of procedure in cases like the present one is all the greater because of the serious consequences which must flow from the decision which ever way it goes. As a matter of fact, the counsel for the defendant would be justified in contending that the statements of the plaintiff and his father should be ruled out of consideration in determining as to how far the plaintiff has established his case by his evidence and also in determining as to whether or not the defendant had rebutted the evidence led on behalf of the plaintiff. With these observations, I should like to deal with the statements of these two witnesses.
(After discussing evidence of these two witnesses His Lordship proceeded).
(15) On appeal, Mr. Raj Kumar has after taking me through the evidence, contended that the evidence led in the case on behalf of the plaintiff does not establish the factum of marriage between Piara Singh and Smt. Gurdial Kaur, and on all important matters the evidence, according to the counsel, is faked and unsatisfactory. With respect to the Anand Karaj, the testimony of the witnesses is most uninspiring and defective. Although it is admitted that the ceremony of Anand Karaj was in fact performed the person who actually performed it has not been produced nor has his identity been disclosed. The evidence of Pakhar Singh. A. W. 4, barber of Sherpura, whose Jajman Piara Singh has been represented to be, has also failed to assert positively that this Jajman Piara Singh was actually married to Smt. Gurdial Kaur. This evidence is in any case unsatisfactory for proving the plaintiff's case because admittedly one of the sons of Narinjan Singh is actually married to one of the daughters of Bachan Singh. On account of this circumstance, the Courts must expect more positive, clear, reasonably precise and convincing evidence of actual marriage between Piara Singh and Gurdial Kaur which has obviously not been adduced on the present record.
(16) On behalf of the respondent, Shri Daljit Singh merely contended that the case depended on oral evidence and therefore, if the Court below has come to a conclusion upholding the plaintiff's story, this Court should not interfere with the finding of fact. The broad proposition on which the learned counsel has placed reliance, though true as a general proposition. is neither a universal rule of law, nor is it otherwise helpful to the counsel on the facts and circumstances of the present case. Important evidence which could and should have been led in support of the Anand Karaj is missing, and otherwise too the oral testimony is of such a weak type that on the peculiar circumstances of this case it is highly unsafe to base a finding of positive marriage on this evidence. The question as to how far an appellate Court is entitled or justified in interfering with the finding of fact based on appreciation of oral evidence has recently again been considered by the Supreme Court in Radha Prasad Singh v. Gajadhar Singh & Others AIR 1960 SC 115.
After reviewing the various decided cases on this question the position has been summarized thus:
"This position in law, in our opinion, is that when an appeal lies on facts is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record.
When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judges is not justified." According to the exposition of law enunciated by the Supreme Court, in my view, the contention of the respondent cannot be sustained. When the factum of marriage is denied by the defendant, it was incumbent on the plaintiff to adduce much more positive evidence affirmatively establishing that it was the marriage of the parties to the dispute which in fact lawfully took place at the time pleaded. Having failed to do so, the Court would clearly be entitled to refuse him the relief by way of restitution of conjugal rights.
(17) I have disposed of this question on appeal finally because, in my view, the evidence of the plaintiff and his father does not materially advance his case. Had I come to the conclusion that the evidence of these two witnesses improved the plaintiff's case, I would have considered the question as to how far the evidence of these two witnesses can lawfully be taken into consideration and that if I felt that it could be so considered, I would have then further considered the question of permitting the defence to adduce evidence in rebuttal. It is obvious that Piara Singh has introduced in his statement some additional facts in support of his version which were not deposed to by A. W. 1 to A. W. 7.
(18) For the reasons given above, this appeal succeeds and setting aside the judgment and the decree of the Court below, I allow this appeal and dismiss the plaintiff-respondent's suit. In the peculiar circumstances of the case, however, there be no order as to costs.
KE/D.H.Z.
(19) Appeal allowed.
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