Mridula R. Bajaaj vs Rajeshwar R. Bajaaj

J.R. Midha, J.

Review Petition No. 354/2009

The Respondent has filed this application for review of the order dated 24th February, 2009.

By order of 24th February, 2009, the parties were directed to file an affidavit of their assets as well as income in Form 16A, Appendix E, under Order XXI Rule 41(2) of the Code of Civil Procedure. The Respondent has not filed the said affidavit till date. Instead the Respondent filed the present review application.

The learned Counsel for the Respondent has made two submissions before this Court. The first submission is that Form 16A, Appendix E, under Order XXI Rule 41(2) of the CPC applies to execution proceedings and, therefore, cannot be invoked in this case.

On being pointed out that his order was passed in exercise of the power of the Court u/s 165 of the Indian Evidence Act, the learned Counsel has made the second submission that Section 165 of the Indian Evidence Act applies only at trial stage and cannot be invoked in appellate proceedings.

The argument of the learned Counsel for the Respondent is most irresponsible as Section 165 of the Indian Evidence Act can be invoked at original as well as appellate stage. Considering the nature of controversy involved, this Court deemed it proper to direct the parties to file the affidavit provided in Form 16A, Appendix E of the Code of Civil Procedure. This Court has not invoked Order XXI Rule 41(2) but only used Form 16A provided under that Rule.

Section 165 of the Indian Evidence Act is reproduced hereunder:

SECTION 165. JUDGE''S POWER TO PUT QUESTIONS OR ORDER PRODUCTION-

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this Section shall not authorize any Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask u/s 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

This section invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact whatever and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to found its judgment on any but relevant statements.

A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty.

Mr. Edmund Burke arguing in Warren Hastings Trial said that it is the duty of the Judge to receive every offer of evidence, apparently material, suggested to him, though the parties themselves through negligence, ignorance, or corrupt collusion, could not bring it forward. He has a duty of his own, independent of them, and that duty is to investigate the truth. If no prosecutor appears, the Court is obliged through its officer, the clerk of the arraigns, to examine and cross examine every witness who presents himself; and the Judge is to see it done effectively, and to act his own part in it.

In Bartly v. State, 55 Nebr 294 : 75 N.W.832 Harrison, C.J., said:

It is undoubtedly necessary that the Judge who presided should acquire as full a knowledge of the facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that Justice may not miscarry, but may prevail; and doubtless, it is allowable at times, and under some circumstances, for the presiding Judge to interrogate a witness.

The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not.

The framers of the Act, in the Report of the Select Committee published on 1st July, 1871 along with the Bill settled by them, observed as follows:

Passing over certain matters which are explained at length in the Bill and report, I come to two matters to which the Committee attach the greatest importance as having peculiar reference to the administration of justice in India. The first of these rules refers to the part taken by the judge in the examination of witnesses; the second, to the effect of the improper admission or rejection of evidence upon the proceedings in case of appeal.

That part of the law of evidence which relates to the manner in which witnesses are to be examined assumes the existence of a well-educated Bar, co-operating with the Judge and relieving him practically of every other duty than that of deciding questions which may arise between them. I need hardly say that this state of things does not exist in India, and that it would be a great mistake to legislate as if it did. In a great number of cases - probably the vast numerical majority - the Judge has to conduct the whole trial himself. In all cases, he has to represent the interests of the public much more distinctly then he does in England. In many cases, he has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm judges with a general power to ask any questions upon any facts, of any witnesses, at any stage of the proceedings, irrespectively of the rules of evidence binding on the parties and their agents, and we have inserted in the Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter.

The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided.

The present application is highly misconceived and unsustainable and has been filed just to delay and defeat the proceedings.

The application is dismissed with costs of Rs. 20,000/- to be paid by the Respondent to the Appellant within 30 days.