Sarba Ranjan Bysack v. Haripriya Dassi

Chakravartti, J.:— This appeal is ending abruptly on a ground, not touching the merits, but unfortunate as that result is, it cannot, in my opinion, be avoided.

2. The litigation itself is an unfortunate one. The parties are husband and wife, the Respondent being the second wife of the Appellant. Before he married the Respondent, the Appellant had married another lady and by her he had a son and a daughter. Upon the death of the first wife in 1906, he married the Respondent in 1907 when she was about ten years of age. For three or four years thereafter nothing in particular happened, but the relations between the parties began to deteriorate as soon as the Respondent came up to be of age. According to the Appellant, the reason was that the Respondent began to exhibit certain oddities of behaviour and began to give out that she was a goddess and to try, very disturbingly, to act that part. According to the Respondents, the reason was the immoral life which the Appellant was leading. Sometime before 1924, matters apparently worsened and the Respondent left the Appellant's house and went to live with her father. In 1924, she brought a suit for maintenance and in the course of that suit an ad interim order was made by which a kind of compromise was effected between the parties. It is not necessary to refer in detail to the terms of that compromise and it will be sufficient to say that the Respondent agreed to come back to the Appellant's house and to live there and the Appellant agreed to receive her, but the method of life agreed to was that the parties would live in separate apartments of the house. The decree passed in the suit was in the same terms. Matters continued in that somewhat unusual way up to 1938 when both parties went to the Appellant's garden house at Sinthi. There, an incident undoubtedly occurred which brought about a final rupture. According to the Respondent, the incident occurred on August 30 or 31, 1939, and it was that she detected the Appellant's mistress Bidyutlata in the Thakurbari which she deeply resented. On her remonstrating with the woman on account of her intrusion, the Appellant, it is said, took her side and locked the Respondent out from the house. Thereafter she left the Appellant, and went to her brother's place in Mohanlal Street in Shambazar. According to the Appellant, what happened was that on receiving certain information he went to the Thakurbari and there surprised the Respondent in a compromising position with his manager Asit Kumar Banerjee. Whatever the nature of the incident might have been, it is common case between the parties that from 1939 they have been living separately. The present suit was brought in 1945 and the prayers in the plaint are for a declaration that the Respondent is “entitled to be suitably maintained by the Appellant according to his position and status in society which the Respondent assessed at Rs. 1,500 per month,” a decree for such monthly maintenance and all the arrears of maintenance from September, 1939, and ad interim order for payment of Rs. 1,500 per month during the pendency of the suit and certain other ancillary reliefs. By his witten statement the Appellant denied the Plaintiff's claim and went to the length of pleading that she was not his wife at all, although he had once married a woman bearing the same name as she. This plea, it is only fair to state, was ultimately abandoned. The chief defence appears to have been that the Respondent, having misconducted herself, was not entitled under the Hindu Law to get any maintenance from the Appellant.

3. The trial commenced before late Mr. Justice Khundkar on January 8, 1947, and before him four witnesses were examined. He heard the suit till February 19, 1947, but we are informed that every day, throughout that period, the learned Judge could give only a fraction of his time to this suit. After the Plaintiff herself and two of her witnesses had been examined and cross-examined and a fourth witness, her brother, had been examined-in-chief and cross-examined for some time, Khundkar, J., unfortunately died. Thereafter, the case went out of the lists altogether. Ultimately after the lapse of some considerable time, it was mentioned before Ormond, J., who agreed to take it up.

4. A question was raised before Ormond, J., as to whether he would be entitled to continue the suit from the stage at which Khundkar, J., had left it, or would have to try the suit de novo. It was contended on behalf of the Plaintiff that under Or. 18, r. 15 of the Code of Civil Procedure, Ormond, J., was entitled to proceed with the suit from the stage at which Khundkar, J., had left it and that under the provisions of the same Rule he would be entitled to treat the evidence given before Khundkar, J., as evidence in the case. It was contended further that, in any event, the learned Judge was entitled to admit in evidence the previous depositions taken before Khundkar, J., under sec. 33 of the Indian Evidence Act.

5. It was contended on behalf of the Defendant that Or. 18, r. 15 of the Code of Civil Procedure had no application to the Original Side, being expressly excepted by Or. 49, r. 3, sub-r. (4). It was contended in the second place that sec. 33 also had no application, inasmuch as the pre-requisites to an application of that section were not present in the case.

6. By an order passed on July 25, 1947, Ormond, J., ruled in favour of the Plaintiff. He held that Or. 18, r. 15 did apply to the Original Side and he was entitled both to continue the proceedings commenced by Khundkar, J., and also to take into account the evidence already given before that learned Judge. He held in the second place that he was also entitled under sec. 33 of the Evidence Act to admit the depositions taken before Khundkar, J.

7. Having thus ruled on the preliminary point, Ormond, J., proceeded with the trial of the suit. By the decree ultimately passed by him, he awarded the Plaintiff a maintenance allowance at the rate of Rs. 1,000 per month and arrears of maintenance at the rate of Rs. 400 per month. Thereupon the present appeal was preferred by the Defendant.

8. Naturally, the ground placed in the forefront by Mr. I.P Mukherjee, who appears on behalf of the Appellant, was that the whole trial before Ormond, J., had been bad inasmuch as the learned Judge had no right to continue the proceedings commenced before Khundkar, J., but was bound to try the suit de novo. It was also contended that the learned Judge had erred in the view he had taken of sec. 33 of the Indian Evidence Act.

9. Mr. Sen, who appeared on behalf of the Respondent, tried to support the view taken by Ormond, J., but the arguments he employed are all to be found in the judgment passed by the learned Judge. It will therefore be sufficient to examine the grounds upon which the order passed by Ormond, J., rests. Or. 18, r. 15 reads as follows:

“(1) Where a judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it”.

10. It is not necessary to set out sub-r, (2) of the Rule.

11. It will be noticed that the Rule provides for a case where a Judge, after commencing the trial of a suit, is unable to complete it, either because of his death or by reason of his transfer or some other cause. It authorises a successor Judge both to continue the suit from the stage at which his predecessor had left it and also to treat the evidence already taken as evidence in the case.

12. All the provisions of the Code of Civil Procedure do not, however, apply to the Original Side and among other provisions of like effect, there is Or. 49 which expressly excludes some portions of the Code of Civil Procedure. The relevant portion of r. 3 of Or. 49 is in the following terms:

“3. The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely”

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII”.

13. It will be noticed that among the rules excluded from application to the Original Side, there is r. 15 of Or. 18. There is, however, a qualifying phrase set out within brackets and the whole question is whether that phrase qualifies only r. 16 or, as Ormond, J., has put it, the whole string of rules set out in the sub-rule.

14. Before Ormond, J., it appears to have been contended that three constructions of Or. 49, r. 3, sub-r. (4) were possible. One was that the phrase within brackets qualified each one of the several rules of Or. 18, set out before that phrase, a second was that the phrase qualified only r. 16 and the third was that it qualified rr. 15 and and 16 but not the remaining rules. In my view, Ormond, J., was right in holding that the choice lay between the first and the second readings and that the third construction suggested was obviously untenable.

15. Ormond, J., took the view that the words within brackets were to be read as “governing the whole collection of the individual items set out in the rule in equal measure”. In support of that view, he gave three reasons.

16. The learned Judge held that if the legislature really intended that the phrase within brackets should qualify only r. 16, it might have adopted certain other forms of expression which would have brought out that intention more clearly. For example, the legislature might have placed the phrase before r. 16 and said “and (so far as relates to the manner of taking evidence) r, 16 of Or. 18”. Or it might have said “and so such of r. 16 as relates to the manner of taking evidence”. Ormond, J., pointed out that the legislature had not used either of these forms of expression which would have placed beyond all doubt an intention to limit the application of the phrase within the brackets to r. 16 but had used, what he called, a generic phrase, namely, “so far as relates”. According to Ormond, J., that phrase could “apply correctly equally well to one rule in the singular or to several rules in the plural”; and in view of the possibility of the phrase having either meaning, the learned Judge held that he should read the phrase within brackets as qualifying all the rules listed in sub-r. (4) of r. 3 of Or. 49. The argument was reinforced by reference to the general ground that there was no special reason for excluding the application of Or. 18, r. 15 to the Original Side of the High Court.

17. Ormond, J., in the second place, referred to the history of the rule and said that if the form in which Or. 49 was expressed in the previous statutes was examined, it would be found that the legislature had deliberately made certain changes which suggested an intention to alter the rule. The learned Judge admitted that in the Code of 1882, as amended in 1888, the corresponding provision appeared in a form which excluded sec. 191 altogether from application to the Original Side of the High Court. Sec. 191, I may point out, embodied the same provision as is now to be found in Or. 18, r. 15. Ormond, J., however, pointed out that in the previous section corresponding to Or. 49, r. 3, sec. 192 which corresponds to Or. 18, r. 16, did not occur at the end of the string of provisions mentioned and therefore was not preceded by the conjunction “and” There also, the expression “so far as relates to the manner of taking evidence” occurred after sec.” 192. But the learned Judge thought that the absence of any conjunction like “and” or “or” before sec. 192 made it impossible to extend the application of the qualifying phrase beyond that section. In Or. 49, r. 3, however, r. 16 was preceded by the conjunction “and” and the use of that conjunction was, in the learned Judge's view, a good reason for holding that the legislature did intend to extend the field to which the qualifying phrase would apply. The learned Judge pointed out further that there was in the old section a form of expression which was better suited to express an intention to limit the phrase to r. 16, if it was intended so to limit it. With regard to sec. 409 of the previous Code, the legislature had said that so much of that section as related to the taking of a memorandum would not apply to the Original Side of the High Court. Ormond, J., observed that if the draftsman of the present Code, having that expression “before his eyes and ready to his hand,” had yet not used it, but used what he called the generic phrase “so far as relates” there was a clear indication that the legislature no longer intended to limit the application of the qualifying phrase to r. 16. The learned Judge accordingly concluded that the history of the rule supported the conclusion which he had reached from an examination of the language of the present Or. 49, r. 3.

18. It appears to me, with great respect to Ormond, J., that the view he has taken of the plain meaning of Or. 49, r. 3. sub-r. (4) is not correct. The enquiry is whether the phrase “so far as relates to the manner of taking evidence” qualifies only r. 16 which occurs immediately before it, or qualifies each one of the rules of Or. 18, mentioned. Ormond, J., has observed that the phrase “so far as relates” can apply equally correctly to one rule in the singular or to several rules in plural. I must naturally speak with a great deal of hesitation in a matter concerning the use of the English language, but I have had the advantage of referring to my Lord, the Chief Justice, and he agrees with me that having regard in particular to the word “rules” with which r. 4 begins, the verb “relates” in the singular number would be ungrammatical, if it was intended to refer to all the preceding rules. Apart from the use of, the singular number, the phrase, as it stands, is of an elliptical character, for, quite obviously, the verb “relates” is without a nominative. If it is intended to refer only to r. 16, the missing nominative must be “it,” whereas if it is intended to refer to all the rules, the missing nominative must be “they.” It was suggested by Mr. Sen that the missing nominative might as well be “each”. But I do not think that any draftsman would put in the word “each” there. If the nominative has to be supplied in order to fill up the obvious gap in the phrase, it seems to in that the use of the singular number in the verb “relates” points to the missing nominative being “it” rather than “they”. That, in my view, is one indication that the phrase within the brackets is intended to qualify only r. 16.

19. In the second place, the phrase speaks of the manner of taking evidence. The effect of the qualifying phrase is that the rules of Or. 18 to which it applies, shall not apply to the Original Side of the High Court, so far as the manner of taking evidence may be their subject-matter. It is quite clear that the phrase is carving out a portion from the rules to which it applies and excluding not the whole rule in any case, but only that portion. In other words, any rule to which it applies must be a rule which deals with the manner of taking evidence as well as something else, and it is the former portion which is excluded from application to the High Court by Or. 49, r. 3, sub-r. (4).If the provision concerned be one which is wholly concerned with the manner of, taking evidence, then there can be no sense in saying that that provision, so far as it relates to the manner of taking evidence, shall not apply. It would not only be singularly inappropriate to apply the phrase to a provision of that character, but it would he incorrect. Looking now at rr. 5, 6, 8, 9, 10, 11, 13 and 14 of Or. 18, it appears that each one of them deals with one matter and one matter alone and that matter is the manner of taking evidence. The phrase “so far as relates to the manner of taking evidence” is, therefore, wholly inappropriate so far as these rules are concerned, because, as I have already explained, these rules do not deal with any other matter and therefore there can be no point in excluding them to the extent that they deal with the manner of taking evidence. Similarly, the phrase is inappropriate also so far as r. 15 is concerned, but for a different reason. R. 15 does not deal with the manner of taking evidence at all and consequently to say of that rule that it shall not apply so far as it relates to the manner of taking evidence, is to enact a provision which is obviously meaningless. On the other hand, when one comes to r. 16, one finds that that rule deals both with the manner of taking evidence and also a matter of a substantive character, namely, the examination of witnesses de bene esse. In r. 16 there are provisions which deal both with the manner of taking evidence and with something else and it is obvious that so far as that rule is concerned, the phrase within the brackets is clearly appropriate and does make a reasonable and sensible meaning when applied to it. As far as I can see, what the legislature intended to do was to exclude rr. 5, 6, 8, 9, 10, 11, 13, 14 and 15 altogether and it was not necessary in the case of those rules to use any qualifying phrase. When it came to deal with r. 16 it was confronted with a provision which provided for examination of witnesses de bene esse and also contained some direction as to the manner of taking evidence. The legislature intending to apply the rule to the Original Side so far as examination of witnesses de bene esse was concerned, but finding it impossible that the rest of the rule should apply in view of the special provisions contained in the Original Side Rules, naturally found it necessary to exclude the latter portion and that it did by the insertion of the qualifying phrase within brackets. In my view, the construction which I have endeavoured to express above is the only possible construction of which the language used by the legislature is capable. It is consistent both with good sense and grammar and makes of the provision a reasonable rule, well adapted to conditions obtaining on the Original Side of the High Court.

20. On the other hand, the construction contended for by the Respondent cannot be adopted without convicting the legislature of having enacted a piece of absurdity. If of two constructions one fits in with all the parts of the provision concerned and makes a sensible meaning, whereas the other leads to absurdities, there can be no question which of them should be preferred. Mr. Sen contended that there was some ambiguity as to the true meaning of sub-r. (4) of r. 3, of Or. 49. In my view, there is no ambiguity at all. He contended further that r. 15 of Or. 18 did contain a portion which related to the manner of taking evidence and in support of that contention pointed out that the evidence which the successor Judge could take in was described as evidence “taken down under the foregoing rules”. But the phrase relied on occurs in r. 15 only as a description of the evidence. The rule itself does not deal with or contain any direction as to the manner of taking evidence and no part of it relates to that subject at all.

21. As I have stated already, Ormond, J., also rested his decision partly on general considerations. He said that he saw no reason why the provision for the mode of trial by a successor Judge which the Indian legislature had clearly chosen for the moffusil Courts and non-chartered High Courts in India, should not have been intended to be applicable equally to the chartered High Courts. The inclusion of non-chartered High Courts within the purview of r. 15 does prima facie suggest some inconsistency. But speaking generally, it seems to me that the reason why the legislature made this provision for the district Courts is that the Judges of the district Courts are liable to be removed on transfer or on promotion frequently and as a matter of course. Cases often occur in which a Judge under orders of transfer is in the midst of a part-heard action and it was therefore necessary to make a special provision to meet situations of that kind where the trial could not conveniently be concluded. It is true that the rule also speaks of death and death is an event which may occur equally in the case of Judges of the High Court. But that event may be expected to be one of such rare occurrence that the legislature, in my view, thought that it was not necessary to make any special provision for the continuation of trials in the High Court in cases of the death of the Judge and to depart from the general and salutary rule that the witnesses shall be heard and seen by the Judge who decides the issues of fact.

22. As regards the previous history of the section Ormond, J., himself points out that under the Code of 1882, the exclusion of sec. 491 from application to the Original Side of the High Courts was unmistakeable. There is nothing in the language of Or. 49, r. 3 (4) to indicate that any alteration of the law in that regard was intended. Why the legislature did not use other forms of expression, is, in my view, a pointless enquiry, if the language it has in fact used expresses its intention with reasonable clarity, which Or. 49, r. 3 (4), as expressed, certainly does.

23. For the reasons given above, both on general considerations and on the true construction of Or. 49, r. 3 sub-r. (4) it must, in my opinion, be held that r. 15 of Or. 18 does not apply to the Original Side of the High Court, and in so far as Ormond, J., held to the contrary, he was wrong.

24. There remains, however, sec. 33 of the Indian Evidence Act. It may in one sense be said that Ormond, J., need not have relied upon Or. 18, r. 15, at all, if his view of sec. 33 of the Evidence Act was correct, for we were informed that there was a fresh opening before Ormond, J., and he heard the remaining witnesses. What in effect happened, therefore, was that Ormond, J., did try the whole case, but only admitted the evidence already taken before Khundkar, J. It is true that he had not had the advantage of, seeing and hearing the witnesses who had been examined before his predecessor and to that extent it cannot be said that the whole trial took place before him. But if sec. 33 of the Evidence Act does apply to the facts of the case, then the fact that Or. 18, r. 15, does not apply might not be fatal to the Plaintiff. sec. 33 of the Evidence Act, so far as is material, is in the following terms:

“Evidence given by a witness in a judicial proceeding * * * is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable”.

25. This is not a case where the witnesses are dead, or where they cannot be found, or where they were at the time the suit was being heard by Ormond, J., incapable of giving evidence, or kept out of the way by the adverse party. Of the various contingencies mentioned in sec. 33 in which evidence given in a previous judicial proceeding or a prior stage of the same judicial proceeding can be admitted, the only one relevant to the present case is where the presence of the witnesses cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Ormond, J., seems to have thought that here was a case where the expense of recalling the witnesses would be unreasonable; and by expense he seems to have understood the expense of actually examining the witnesses in Court. He referred to the fact that the four witnesses examined before Khundkar, J., had been examined for the space of fourteen days and thought that it would be unreasonable, under the circumstances of the case, to compel the Plaintiff to undergo the expense of having those witnesses examined again.

26. In my opinion, the view taken by Ormond, J., of sec. 33 is also not correct. In the first place, the words used in the section are “if his presence cannot be obtained without an amount of delay or expense, etc.” There was no question of delay in the present case. The witnesses were all in Calcutta. The only relevant consideration is expense. But it will be noticed that the expense contemplated by the section is the expense of obtaining the presence of the witness and not the expense that will be incurred for and during the actual examination of the witness in the box. In so far as Ormond, J., relied upon the probable expense of actually re-examining the witnesses in Court, he was relying upon a ground which is not to be found in sec. 33.

27. In the second place, I have great doubts whether sec. 33 applies to the case of a party. It speaks of witnesses. It is true that a party can himself or herself be a witness, but I greatly doubt if the legislature, in enacting sec. 33 and making the evidence of a witness, given at a prior stage, admissible on the ground that to recall him might be unreasonably expensive, was also contemplating the case of a Plaintiff calling himself or herself as a witness.. Be that as it may, if the ground of expense is to be relied upon, it must be only such expense as the section expressly mentions. The scope of the expense cannot, in my view, be widened.

28. It has often been pointed out that sec. 33 is a provision of a very exceptional kind and must be resorted to only when the witnesses, whose evidence is sought to be admitted, cannot be called for reasons of insuperable difficulty. In a recent case decided by the Judicial Committee, Chainchal Singh v. King Emperor(1) Lord Goddard, delivering the judgment of the Board, observed as follows:

“Where it is desired to have recourse to s-33 of the Evidence Act, on the ground that a witness is incapable of giving evidence that fact most be proved, and proved strictly. It is an elementary right of an accused person, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence be fore the court trying the ease, which then has the opportunity of seeing the witness and ob serving his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved”.

29. It is thus clear that in applying sec. 33 Courts cannot be too careful to see that they do not transgress the strict limits of the section and do not lightly encroach upon the right of a party to have the witnesses, upon whose evidence the decision of the questions of fact will depend, examined before the Judge who will give the judgment. It might certainly be said that if the legislature was making expense a good ground for not re-calling a witness, there was no reason why it should have made a distinction between one part of the expense and another. But a distinction has in fact been made and the reason probably is that the Legislature was only thinking of very special cases as where the witness had left the country or was otherwise a very expensive witness to be brought before the Court and not of expenses such as lawyers' fees which would be required for the actual examination. In the old case of E. v. Lakhan Santhal(2) it was observed that the delay and expense of postponing a trial, in order that the absent witnesses might be brought, was no ground for admitting the evidence given by them in a former judicial proceeding. The only expense which may be taken into consideration is therefore expense which comes within the strict words of the section. In my view, the conditions laid down in sec. 33 were not present in the case before Ormond, J., and in so far as he held that sec. 33 applied, he was also wrong.

30. I may add that assuming either Or. 18, r. 15 of the Code of Civil Procedure or sec. 33 of the Evidence Act applied or both did, the powers given by both the sections are discretionary and should be exercised only when the requisite conditions exist. The claim in the present case was a claim for maintenance at the rate of Rs. 1,500 a month. The claim for arrears amounted to more than a lac of rupees. The Plaintiff and her witnesses were all in Calcutta. There would be no expense worth speaking of in obtaining their presence in Court. Assuming that sec. 33 also contemplates the expense of actual examination in Court, such expense, we are told, would be roughly about two to three thousand rupees. I am of opinion that the fact that to re-examine the four witnesses before Ormond, J., would mean a waste of rupees two or three thousand, could not be a sufficient consideration in the circumstances of the present case to depart from the fundamental rule that witnesses should be seen and heard by the Judge of first instance who decides the issues of fact. I am of opinion that even if the provisions of, law relied upon technically applied to the facts of the case, the circumstances were not such that the discretion, conferred by the sections, could be properly exercised in favour of admitting the evidence previously given without re-examining the witnesses before the Judge who ultimately came to try the suit.

31. For the reasons given above, it must be held that the trial held by Ormond, J., was utterly bad and that his judgment, based as it is in part on inadmissible evidence, is also not sustainable in law. It was not contended on behalf of the Respondent that even if the evidence of the four witnesses examined before Khundkar, J., was excluded, sufficient would remain on the strength of which the Plaintiff would be able to establish her case. The witnesses examined before Khundkar, J., included the Plaintiff and her brother who, so far as it appears, were the only witnesses, at least the principal witnesses who could speak to the events of August or September, 1939. In these circumstances, it was perfectly natural that Mr. Sen could not contend that he could succeed on the balance of the evidence. There can thus be no question of examining the remaining evidence and trying to find whether the judgment of Ormond, J., can still stand.

32. In view of the opinion which we had formed on the preliminary point, we did not, deliberately, invite the parties to address us on the merits of the case. As, in our view, the suit must go back to the trial Court to be re-heard in accordance with law, it appeared to us that it would be improper if we nevertheless proceeded to express any opinion on the merits and that any opinion we might so express would seriously embarrass the learned Judge to whom it would fall to hear the suit on remand. It is true that although our order is not finally disposing of the suit, an appeal from it might still lie, provided the Respondent made out a case for a certificate. The ordinary rule undoubtedly is that in all appealable cases, a Court, even if it holds against a particular party on a fundamental question which really means the end of the case, must nevertheless proceed to record its findings on all the remaining issues, so that in the event of the Court being overruled on the preliminary point, there might be no necessity of remand. We do not think that we can properly follow that rule in the present case. Were we to do so, we, in our turn, would be basing our decision on evidence which we ourselves have held to be inadmissible. Further, as I have already pointed out, it would be extremely embarrassing to the learned Judge who would hear the suit on remand to find that the Court of appeal has already expressed a certain view on the evidence given on a previous occasion by the very witnesses whose credit he was to judge. We have therefore considered it proper not to invite an argument on the merits at all, and not to undertake any examination of the facts on our own account, nor to express any opinion on the facts.

33. In the result, this appeal is allowed, the judgment and the decree passed by Ormond, J., are set aside and the suit is remanded to the trial Court to be re-heard from the beginning in accordance with law.

34. There remains the question of costs. We have felt greatly oppressed by the fact that the situation in which the Plaintiff now finds herself is one of extreme difficulty. In part, this situation has been created by the legal advice which she received and which now turns out to have been unsound.

35. It is unfortunate that such advice should have been given, but in any event, so far as she herself is concerned, the situation undoubtedly is one of extreme hardship. We cannot also forget the fact that she is admittedly the wife and is claiming maintenance from her husband who does not pretend to have been very loyal. In the circumstances, we think the proper order to be made is that the costs of this appeal and of the previous proceedings in the trial Court will be the costs in the suit.

36. Certified for two counsel.

37. The hearing of the suit should be expedited to the utmost extent possible, consistently, with the other business of the Court.

Harries, C.J:— I agree.