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Judgment
P.S. Narayana, J.—Heard Sri Mahadeva, the counsel representing the revision petitioner and Sri Ramesh the learned counsel representing the respondents.
This Court on 18-8-2005 ordered notice before admission and the interim stay was granted for a period of four weeks. The counsel representing the respondents had entered appearance and the Civil Revision Petition is heard at length and the same is being disposed of at the stage of admission.
Sri Mahadeva, the learned counsel representing the revision petitioner, the plaintiff in O.S. No. 519 of 2002 on the file of Principal Junior Civil Judge, Proddutur would contend that the petitioner, as plaintiff filed I.A. No. 641 of 2005 in the said suit praying for amendment. The learned counsel would also contend that the petitioner filed the application praying for alteration of the plaint plan in view of the report of the Commissioner and the plan filed by the Commissioner. The learned counsel would also submit that this can be taken as a subsequent event and inasmuch as liberty was prayed for when a prior similar application had been dismissed, the said order would not come in the way of this Court in considering the present application and Civil Revision Petition on merits. The learned counsel also explained that the affidavit of chief-examination was filed on 30-9-2004. But, however, inasmuch as the main provision of Order VI Rule 17 of the CPC (in short hereafter referred to as ''Code'') specifies "at any stage of proceedings", the same can be allowed inasmuch as this is only a subsequent event and also in view of the fact that the petitioner-plaintiff has been prosecuting the litigation with all diligence. The learned counsel however in all fairness would submit that this would be a post-trial amendment and not a pre-trial amendment and also would submit that the suit itself is instituted after the Amendment Act 22 of 2002 coming into force and hence, the amended provision alone would be applicable.
Per contra Sri Ramesh the learned counsel representing the respondents would contend that the present application is not a bona fide one for the reason that even in the affidavit filed in relation to chief-examination nothing relating to this aspect had been specified. Apart from this aspect of the matter the learned counsel also would point out that similar application had been moved and the same was dismissed. The learned counsel would also submit that in spite of repeated adjournments, though the matter is an identified one the petitioner is not further proceeding with the matter and this application was thought of only with a view to delay the proceedings and hence there are no bona fides at all on the part of the petitioner.
Heard the learned counsel on record.
The petitioner as plaintiff moved I.A. No. 641 of 2005 in O.S. No. 519 of 2002 on the file of the Principal Junior Civil Judge, Proddutur praying for amendment of the pleading. It is stated that he had taken a Commissioner to inspect the plaint schedule property and it is also stated that he filed an affidavit in relation to the chief-examination on 30-9-2004 and the Court also imposed costs of Rs. 100/- in relation thereto and in view of the report and the plan the petitioner prayed for permission to alter the plaint plan. The said application was resisted on the ground that the proposed amendment is not a bona fide one and it would amount to introducing a new cause of action. It is not in controversy between the parties that the petitioner already filed an application I.A. No. 494 of 2005 in the said suit praying for similar relief to amend the plaint plan and to change the boundaries of the plaint schedule property and the same was not pressed and consequently dismissed.
Order VI Rule 17 of the Code reads as hereunder.
Amendment of Pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
The proviso aforesaid was added by Amended Act 22 of 2002. The words "after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial", would assume some importance in deciding the present application.
In E. Prasad Goud Vs. B. Lakshmana Goud, the learned Judge observed:
The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other''s case. It also helps in checking the delays in filing the applications. Further, once the trial commences on the known pleas, it will be very difficult for any side to reconcile. Yet, under the same proviso, an exception is made where it is shown that in spite of diligence, he could not raise a plea. Therefore, it is not a complete bar nor shuts out entertainment of any later application. Otherwise, the proviso would be in direct conflict to the expression "at any stage" used in the Rule. Even the object as enunciated in the amending Act, is to allow either party to alter or amend his pleadings, where it is satisfied that either new facts have come into existence subsequent to the institution of the suit. The restriction imposed under this amended provision could at the most relate to the facts, events and circumstances which are existing or available either on the date of filing the suit or on the date of filing of the pleading i.e., written statement. It further goes in support that the Court is always entitled to take note and allow any amendment in regard to any subsequent event. Therefore, the said provision would not apply for addition to the pleadings of any new facts or material based on a subsequent event.
The Court below, therefore, was not right in rejecting the applications holding that the bar goes against the petitioner. Admittedly in this case, the telephonic talk was subsequent to the filing of Written Statement and long after filing of the suit itself and the petitioner has come out with the applications on the day when the matter was posted for his evidence.
In Koudagani Rajeshwar Rao and Another Vs. Gandu Sammaiah, the learned Judge held;
It is therefore very clear that unless the court comes to a conclusion that in spite of due diligence, the party seeking amendment could not have raised the plea intended to be taken, it should not allow amendment of pleadings after commencement of trial. First revision petitioner filed his written statement on 12-3-2001, taking a specific plea in Para 7 that even if the respondent (plaintiff) or his father had title to the suit property, they lost it by virtue of his adverse possession, it is clear that there was no jural relationship of landlord and tenant between them. The affidavit filed in support of I .A. No. 60 of 2003 does not state anything as to how and when the petitioners came to know that the father of the first petitioner was a protected tenant in respect of the suit land. At this stage I feel it relevant to extract Para 1 of the affidavit filed in support of I.A. No. 60 of 2003. It read:
At the time of filing of my written statement, I had not informed my advocate while preparing the written statement, that my father was a protected tenant to the suit schedule property. After the death of my father the property was inherited by me.
Which, if true, means that even by the date of filing of the written statement, revision petitioners were aware that the father of the first petitioner was a protected tenant in respect of the suit property. So, it is clear that even though revision petitioner was aware that the father of the first petitioner was the protected tenant in respect of the suit property they chose to take a plea of protected tenancy in the original written statement was due to inadvertence. On the other hand it is clear that they deliberately took the plea of adverse possession. Therefore, the proviso to Rule 17 of Order 6 CPC comes into operation and so, I find no ground to interfere with the conclusion of the learned trial Judge that the petition is liable to be dismissed.
Reliance was also placed on Choppa Rambabu and Others Vs. Choppa Demudamma and Another, . The words "after the trial has commenced" and the words "before commencement of the trial" would indicate that the proviso would come into operation, if the application for amendment of the pleading is filed after the commencement of trial. Thus, in all caution for the applicability of the proviso a cautious distinction has been drawn between pre-trial amendments and the post trial amendments. It is not in serious controversy that in the present matter, the application was moved after the affidavit relating to chief-examination was filed.
While dealing with the trial of the suit, hearing of the suit and the distinction to be drawn, the Division Bench of Bombay High Court in Sitaram Hirachand Birla Vs. Yograjsing Shankarsing Parihar and Others, at para 6 while dealing with the aspect in the context of Section 90(2) of the Representation of the People Act, 1951 observed:
The trial of suit does not mean the same thing as the hearing of a suit. Order 18, Civil P.C., in terms speaks of the hearing of a suit and not the trial of a suit. A Court is concerned with the trial of a suit from the time when it is instituted. The hearing of a suit is only a part of the trial of the suit and the hearing is concerned with what happens in open Court when witnesses are examined and cross-examined, addresses are delivered by counsel and judgment is delivered. But a great many things go on after a suit is instituted which are all concerned with the trial for a suit Section 90(2) is not restricted only to the hearing of suits.
Order 18 of the Code deals with the hearing of the suits and examination of the witnesses.
Order 18 Rule 4 of the Code deals with recording of the evidence and the same reads as hereunder:
Recording of evidence:- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub rule, consider taking into account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanor of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case maybe, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI. Insofar as they are applicable, shall apply to the issue, execution and return of such commissions under this rule
It is needless to say that the Constitutional validity of the Amended Acts, Act 46 of 1999 and Act 22 of 2002 were unsuccessfully challenged in Salem Advocate Bar Association Vs. Union of India (UOI), .
In the Law Lexicon by Sri Bakshi on "commencement" it was stated:
Commencement:- In the "Words and Phrases" (Permanent Edition) Vol. 42-A. at page 171, under the head "Commencement", it is stated "A ''trial'' commences at least from the time when work of empanelling of a jury begins" Union of India v. Madanlal Yadav, 1996 (1) JIC 719 (SC).
While dealing with the word or expression trial both before the Civil Court and the Criminal Court it was stated by Sri Bakshi:-
TRIAL:- It is, according to Wharton''s Law Lexicon ''the examination of a cause civil or criminal, before a Judge who has jurisdiction over it according to laws of the land". According to the Oxford Dictionary the meaning of the word given under the heading ''trial'' is: (1) The examination and fixation of a cause by a judicial tribunal, determination of the guilt or innocence of an accused person by a Court; (2) The determination of a person''s guilt or innocence, of the righteousness of his cause, by a combat between the accused. The explanation of the same in Stroud on the authority of the observation of Filed J., in Gath v. Howarth, 28 SJ 427 (Stroud''s Judicial Dictionary, Page 3092) is that it is ''the conclusion by a competent Tribunal of the questions in issue in legal proceedings whether civil or criminal", Again in Bowier''s Law Dictionary the term is stated on the authority of a decision in U.S. v. Curtis Bouviers Law Dictionary, page 3320 to mean ''the examination before a competent Tribunal according to the laws of the land of the facts put in issue in a cause for the purpose of determining such issue''
These illustrations express in different was precisely the same idea, i.e. that the word ''try'' or trial is not limited to trial of offence, but includes a larger area and used in regard to any legal proceedings and in regard to any issue whether it be civil or criminal. The word ''try'' or ''trial'' would not be limited only to a restricted meaning i.e. trial of offence. Venkata chinnayya v. Emperor ILR 43 Mad. 511 at 522 : AIR 1920 Mad. 337 at p. 341 (FB); Varjiwan P. Seth Vs. Ratanlal Jahotia and Another, .
It is no doubt difficult to define the term ''trial'' precisely; as a definition given for the purposes of one context may not be very satisfactory for another. Broadly speaking, however, a trial is the examination by the competent Court of the facts or law in dispute or put in issue in a case. It is the in jurisdictional examination of issues between the parties whether they are of law or of fact.
The beginning of a trial therefore, means the first date when a Court or a Tribunal begins on such judicial examination. Such a date is capable, of being fixed by the Court or Tribunal itself, and not by any outside authority. The Explanation to Sub-section (4) however, lays down a specific rule and provides, inter alia, that the trial for the purposes of filing a recriminatory application u/s 97 shall be deemed to begin on the date fixed for the respondents to appear before the Tribunal and to answer the claim or claims made in the petition.
The purpose of the framers of the Act in enacting the Explanation seems to be to fix a particular point of time for the purpose in order to avoid delay and uncertainty, and therefore, the provision has been made that the trial for the purpose of filing a recriminatory application (and the security in that connection) be deemed to begin on the date fixed for the respondents ''to appear before the Tribunal and answer the claim or claims made in the petition''. Refer Representation of People Act, 1951, Section 90, 97. Sajjansingh and Another Vs. Bhogilal Pandya and Another, .
The word ''trial'' has two meanings. It may mean the trial of a controversy that begins from an issue. It may equally mean the trial of an election petition or a complaint or an action from beginning to end. The word used in Section 90(1) of the Act refer the latter. In this sense the word ''trial'' covers the entire process of litigation from the acceptance of the election petition for trial to its disposal. Refer Representation of People Act, 1951, Section 90. H.V. Kamath v. Election Tribunal AIR 1958 MP LJ 426 : 1958 Jab. LJ 1 : 14 (1958) ELR 147.
It cannot be held that the word "trial" in Section 98 means that stage of the trial where evidence is given and arguments are addressed therefore an order dismissing a petition under the powers contained in Section 90(3) is not an order u/s 98 and it is resultantly not appealable.
That word in the other sections in this part of the Act evidently means the entire proceeding before a Tribunal from the reference to it by the Election Commission to the conclusion. Refer Representation of People Act, 1951, Section 90, Om Prabha Jain Vs. Gian Chand and Another, .
A reading of the provisions of Chapter III as a whole makes it clear that notwithstanding the amendments effected by Act 26 of 1956 the word ''trial'' in Section 90(2) still means the entire proceedings before the Tribunal. Refer Representation of People Act, 1951 Section 90, Mubarak Mazdoor Vs. K.K. Banerji and Another, .
The term ''trial'' cannot be given a fixed meaning to be applied in all cases uniformally commotation of that word changes with the difference in which the term is employed in a particular provision of any statute. M/s. Omparkash Shivprakash Vs. K.I. Kuriakose and Others, .
The true meaning and purpose of the expression ''trial''. Heading of Chapter 111 of the Representation of the Peoples'' Act, 1951, is Trial of Election Petitions'' Sub-section (1) of Section 86 empowers the High Court to dismiss an election petition if the same does not conform to the requirements of Sections 81, 82 and 117. It may be true that other subsections of Section 86 provide as to the different stages of trial. Would it mean that no order passed under Sub-section (1) of Section 86 would not be one passed at the trial. The Explanation appended to Sub-section (1) of Section 86 makes the position absolutely clear and implicit.
Explanation as is well known has various functions. This Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, stated:
We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of willful default. Before, however, we embarks on an enquiry into this difficult and delicate question. We must appreciate the intent, purpose and legal effect of an Explanation. It is now well-settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning to explain or clarify certain ambiguities which may have crept in the statutory provision.
Furthermore, Section 86 deals with trial of election petitions, Sub-section (1) whereof is a part of it. Trial has not been defined. In Black''s Law Dictionary at page 1348 it is stated:
A judicial examination and determination of issues between parties to action. Gulf, C. and S.F. Ry. Co. v. Smit Okl 270 p. 2d 629, 633 whether they be issues of law of fact, Pulaski v. State 23 Wis 2d 138 : 126 NW 2d 625, 628. A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties whether of law or fact, before a Court that has proper jurisdiction.
It is, therefore, not necessary that the trial must be a full dressed or a jury trial or a trial which concludes only after taking evidence of the parties in support of their respective cases. Deepak Chandra Rushidas v. Chandan Kumar Sarkar 2003 (10) AIC 729 ,732 and 733 (SC).
Connotation of word ''trial'' changes with its use in different statutes and it cannot be given a fixed meaning to be applied in all cases uniformly. M/s. Omparkash Shivprakash Vs. K.I. Kuriakose and Others, .
What is the meaning of word ''trial'' in Section 90(2). According to the appellants, it must be taken in limited sense as meaning the ultimate hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. According to the respondent; it refers the entire proceedings before the Tribunal from the time that the petition is transferred to it u/s 86 of the Act until the pronouncement of the award. While the word ''trial'' standing by itself is susceptive of both the narrow and the wider sense, the question is, what meaning attaches to it in Section 90(2), and to determine that, the Court must have regard to the context and the setting of the enactment.
The provisions of Chapter III read as a whole, clarifies that ''trial'' is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it u/s 86 until the pronouncement of the award. Refer Representation of the People Act, 1951, Section 90. Harish Chandra Bajpai Vs. Triloki Singh, .
The hearing of a cause, civil or criminal, before a Judge who has jurisdiction over it, according to the laws of the land. Trial is to find out by the examination the truth of the point in issue or question between the parties, whereupon judgment may be given (Co. Litt. 124 b).
At a trial by jury now, as formerly in the Common Law Courts, the cause is called on, or the prisoner arraigned, before the jury is sworn. The parties may then challenge the jury. (See Challenge). The pleadings are then (in civil causes and misdemeanours) opened by the Junior counsel for the plaintiff: and if it appear that the burden of proof is on the plaintiff, his senior counsel states the case to the jury; after which the witnesses for the plaintiff are examined by his counsel, the cross-examination being generally conducted by the senior counsel for the defendant. If the defendant''s counsel object to any question or any document, all the defendant''s counsel are entitled to be heard on the objection, and all the plaintiff''s counsel on the other side, and the senior counsel for the defendant in reply; and so if the plaintiff''s counsel object mutates mutandis. If the plaintiff have evidence to rebut the issues of which the burden of proof lies on the defendant, he may either produce it at the same time as his other evidence, or reserve it until after the defendant has given an affirmative evidence on the issue. At the end of the plaintiff''s evidence, the defendant''s counsel declares whether he will call witnesses; and if he does not, the plaintiff''s senior counsel sums up his evidence, and the defendant''s counsel calls evidence, he immediately opens his case to the jury, and the witnesses are called and examined as in the plaintiff''s case. The plaintiff is, in general, entitled to call witnesses to rebut the evidence of the defendant, if he has not already given all his evidence, which is more generally the case. Then the defendant''s Senior Counsel sums up, and the Senior Counsel for the plaintiff replies upon the whole case. The Judge then sums up. By consent of both parties the verdict may be taken by the associate in the absence of the Judge; but in a criminal trial he must be present.
In a criminal trial the effect, of the pleadings is stated to the jury by the clerk of the Court, except in a case of misdemeanour, where that is done by counsel as in a civil cause. In other respects the order of proceeding is the same. After conviction for misdemaenour the counsel for the defendant may address the Court in mitigation, and the counsel for the prosecution in aggravation, of his sentence. Sentence may be deferred to a future day.
In criminal cases, where the accused is charged on indictment, the trial is always by a jury. In civil cases in the High Court, trial is without a jury, unless the Court otherwise orders; but where fraud is alleged, or in cases of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, an order is made for trial by a jury on the application of either party ''unless the Court or Judge, is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot, conveniently be made with ajury''. Under the Administration of Justice (Miscellaneous Provisions) Act, 1933 (23 & 24 Geo. 5, c. 36), Section 6, trial by jury is entirely at the discretion of the Court or Judge, and see R.S.C. Order XXXVI, Rule 2-6: also Keelying v. Cook (1934) 78 LJNC 306, and Jury. In country Courts parties are entitled to trial by jury unless the Judge, on the application of a party, decides that the action or matter cannot as conveniently be tried with a jury as without one. The Judge, however, cannot order a trial without a jury where the High Court would not be able to do so. Admiralty proceedings; case under the increase of Rent and Mortgage Interest (Restrictions) Acts are not tried by juries. See A.P. R.S.C. Orders XXVII-A and XXXIX, and Country Courts Act, 1934, Section 91. and the Annual Country Courts Practice. See Wharton''s Law Lexicon, 14th Ed. 1011.
It would be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial. Union of India v. Madan Lal, (1996) Judicial Interpretation on Crimes 719 (SC).
The word ''trial'' has not been defined in the CPC and that word occurring in Section 10 shall have to be taken in the light of scheme of the Code itself. As has been adjudged by the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, the word ''trial'' standing by itself is susceptible to both the narrow and wider senses i.e. it may be seen in the limited sense as meaning the final hearing of the matter comprising examination of witnesses, filing documents and addressing arguments or it may sense entire proceedings before the tribunal from the time that the matter is instituted until the pronouncement of the decision. The case before the Supreme Court was under the Representation of the People Act of 1951 and, there the Court was called upon to analysis the word ''trial'' appearing in Section 90 of the Act. Considering the scheme of the Act the Supreme Court held that the word there was used in a wider sense. It would, therefore, appear that the word ''trial'' cannot have only one meaning namely all proceedings right from the filing of the plaint till disposal of the suit. As has been by the Supreme Court, it is also capable of narrower meaning namely the final hearing of the suit consisting of examination of witnesses, filing documents and addressing arguments. It is in this limited sense that the word ''trial'' has been used in Section 10 of the Civil Procedure Code. Sujanbai Haribhau Kakde and Others Vs. Motiram Gopal Saraf and Another, .
The definition of ''enquiry'' in Section 41(k), Criminal Procedure Code shows beyond doubt that an ''inquiry'' is something different from a ''trial'' and that ''inquiry'' stops when ''trial'' beings, Kingam Savaranna Vs. State and Another, .
For purposes of declaration of the judgment or the charge to the Jury and so long as the judgment has not been pronounced or the Jury charged the trial is not ended resultantly a Magistrate, or a Judge sitting alone, is entitled to call fresh evidence up to the stage of giving judgment. Similarly, a Judge sitting with a Jury can take fresh evidence until the stage of his charge to the Jury. Refer Criminal Procedure Code, 1898, Section 540, Ram Jeet and Others Vs. The State, .
Though ordinarily a trial and an appeal are different proceedings, a Sessions Judge hearing an appeal against a conviction u/s 210 IPC was held to be ''trying'' the appellant within the meaning of Section 487, Criminal Procedure Code, Madhab Chandra v. Novodeep Chandra (1889) 16 Cal. 121. In Emperor v. Nirmal Kanta Roy AIR 1914 Cal. 901 : 24 IC 340 : 15 Cri.LJ 460 : 41 Cal. 1072 , Stephen, J. decided that where an accused was tried by a second jury u/s 306, Criminal Procedure Code, he was not ''tried against'' within the meaning of Section 403, Criminal Procedure Code. Keeping to regard the scheme and purpose of the Bengal Emergency Powers Ordinance, 1931 an order for the trial of any person by a Special Magistrate made u/s 30 clothes such Magistrate with jurisdiction to retry the case where an Appellate Court directs a retrial by him u/s 423(1)(f). Criminal Procedure Code, and that the trial cannot be said to be final until the Magistrate has carried out the directions of the Appellate Court and finally disposed of the case. Jiban Molla Vs. Emperor,
The right of getting the witnesses examined de novo which was initially granted by Section 350, Criminal Procedure Code has no doubt been taken away by the amendment. The discretion of the examination of witnesses de novo is now consisted in the Magistrate to whom the case is transferred or the Magistrate who succeeds the prior Magistrate.
If the transfer is effected under provisions of Section 528(2) the Magistrate to whom it is transferred must examine the available witnesses de novo.
This is consistent with the explanation that when the case was transferred to a new Magistrate, he should examine the witnesses afresh and dispose of the case. That is to say there must be a quite a fresh trial when it is transferred to him as the expression used is ''for enquiry or trial'' senses full trial and not a partial trial based on the evidence partly recorded by him and on evidence recorded by the other Magistrate from whose file the case had been transferred. In Re: Ganesa Pillai and Another, .
Ordinarily the word ''trial'' is understood as referring to the stage of the proceedings in a criminal case after the charge had been framed against the accused. But, occasionally the word ''trial'' has been used in the Criminal Procedure Code itself as referring to a stage of proceedings prior to the framing of the charge. Vijai Kumar v. State 1977 CLR 37 : 1977 FJ 526.
Likewise in K.J. Aiyar''s Judicial Dictionary it was stated:
TRIAL. Trial'' according to Stroud''s Judicial Dictionary means ''the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal (Stroud''s Judicial Dictionary, 3rd Ed., Vol. 4 Page 3092) and according to Wharton''s Law Lexicon, it means ''the hearing of a cause, civil or criminal before a Judge who has jurisdiction over it according to the laws of the land''. (Wharton''s Law Lexicon, 14th Ed., Page 1011).
"Trial'' means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilty or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial. Union of India and others Vs. Major General Madan Lal Yadav (Retd.), .
''Trial'' means a judicial examination in accordance with the law of the land, of a cause, either civil or criminal, of the issues between the parties, (Anand Swaroop Tiwari v. Ramratan Jatav 1996 Jab LJ 8 (MP) ; See also Nemaichand Sen v. Kumud Behari Basu ILR (1951)1 Cal. 404).
According to Bombay High Court, ''trial'' has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence, if the accused is defended present in Court for the hearing of the case Dagdu Govindshet Wani Vs. Punja Vedu Wani, .
The words ''tried'' and ''trial'' appear to have no fixed or universal meaning. No doubt in a number of sections in the Cr. P.C. the words ''tried'' and ''trial'' have been used in the sense of reference to a stage after the inquiry, they are words which must be considered with regard to the particular context in which they are used and with regard to the scheme of the provision under consideration. Bhagwandas Vs. The State of Rajasthan, .
The word ''trial'' has been used in Section 428, Cr. P.C. and the object and purpose underlying that provision, the word ''trial'' used in that provision includes also proceedings in appeal, like those in the instant appeal, State of Madhya Pradesh Vs. Mohandas, The word ''trial'' has been used in the same sense in Sections 90(1) and 98(a) of the Representation of the People Act, 1951, as interpreted by the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, . For purposes of both these provisions, the trial of an election petition commences on the reference of the petitions to the Tribunal. The trial concludes, when the Tribunal makes an order which fact puts an end to or closes the proceedings before it arising out of an election petition. The trial of an election petition is the entire process of litigation from its first seisin by the Tribunal to its disposal, and includes matters prior to the actual hearing of the petition. The matters relating to the service of summons, calling for a finalizing the pleadings, and setting the issues, are all constituent stages of the trial. (Duryondhan v. Sitaram AIR 1970 AIM (8 (FB)).
The word ''trial'' has been used in various sections of Cr. P.C. (old & new) in different context with different meanings. Therefore, wherever the term appears, its meaning has to be understood according to the context in which it has been used. Looking at the definition of ''inquiry'', it may not be unreasonable or improper to state that this definition impliedly gives the meaning of trial. It can be said that ''inquiry'' stops when the ''trial'' begins or that every proceeding preceding a ''trial'' is an ''enquiry'' although in the ordinary parlance or in the popular or the in general wide sense of the term'' trial'' begins or opens as soon as the Court takes cognizance of the offence or the accused appears before the Court. The expression ''trial'' generally means the determination of issues arising in a particular case. The word ''trial'' has its origin from French ''trier'' and Latin ''tris, tria''. In the general talk when we speak of ''trial'' of persons, what are really tried in a civil as well as a criminal case are issues. A ''trial'' can conclude only in a conviction or an acquittal, while at the conclusion of an inquiry the accused is either discharged or a charge is framed against him. In a warrant case, whether instituted on police report or otherwise, the ''trial'' commences only after framing of a charge against the accused, and in a summons case the ''trial'' begins as soon as the accused appears before the Court and the particulars of the offence are put to him. (Food Inspector, Palghat Municipality v. Venkatachalam Chettiar 1979 Ker. LT 750 (DB).
Because the word ''trial'' has been used in certain sections of the Criminal Procedure Code, to refer to the proceedings upto a certain stage, it does not follow, necessarily, that the word ''trial'' excludes a proceeding relating to the delivery of judgment, Inayat and Others Vs. Rex, .
The judicial function of the Court begins as soon as the public prosecutor opens his case and produces documents in support of his case. This begins after the accused is brought before the Court. For, till such time as the accused is not brought before the Court, the case cannot be opened and trial against the accused cannot begin, as there is no provision for ex parte trial against the accused. Even in case of absconding accused, all that the Court can do is to record evidence of witnesses u/s 299 of the Cr. P.C. which can be used later when the accused is produced before the Court. Hearing arguments and considering documents produced by a party in the presence of the accused is the exercise of a judicial function and once that is done the trial starts. (Karam Chand v. State 1980 (UP) CLR 497).
The word ''trial'' may be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. It may also connote the entire proceedings before the tribunal from the time that the petition is transferred to it. ( Harish Chandra Bajpai Vs. Triloki Singh, : Indian Ban v. Maharastra State Co-operative Marketing Federation Ltd. (1998) 5 SCC 59.
The commencement of trial in the normal parlance would be understood as commencement of letting in evidence after settlement of issues on the date fixed. In this context Order 18 Rules 1, 2 and 3 of the Code also would assume some importance. The said provisions read as hereunder:
Right to begin:- 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.
Statement and production of evidence:- (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.
(3A) Any party may address ''oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.
Allahabad: For Rule 2 substitute the following:-
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, indicating the relevancy of each of the documents produced by him, and the nature of the oral evidence which he proposed to adduce and shall then call his witnesses in support of the issues which he is bound to prove. (20-6-1936).
(2) The other party shall then state his case in the manner aforesaid and produce his evidence (if any),
Calcutta:- Insert the following as Rule 2A:-
2A. Notwithstanding anything contained in clauses (1) and (2) of Rule 2, the Court may for sufficient reason go on with the hearing, although the evidence of the party having the right to begin has not been concluded, and may also allow either party to produce any witness at any stage of the suit.
Gauhati:- Same as in Calcutta.
Madhya Pradesh:-Add the following as Sub-rule (4):-
(4) Notwithstanding anything contained in this rule, the court may order that the production of evidence or the address to the Court may be in any order which it may deem fit.
Evidence where several issues:-
Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case.
In Salem Advocate Bar Association, Tamil Nadu v. Union of India 2005 (5) SCJ 519 : 2005 (5) ALDER (SC) : 2005 (6) ALT 19 . The Apex Court held :
The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-examination and re-examination in open Court has not been disturbed by Order XVIII Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the Legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order XVIII Rule 4 has been examined and its validity upheld in Salem Advocates Bar Association''s case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar Association''s case, it has been held that the trial Court in appropriate cases can permit the examination-in-chief to be recorded in the Court. Proviso to Sub-rule (2) of Rule 4 of Order XL clearly suggest that the Court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in Court or by the Commissioner appointed by it. The power under Order XL Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rules controlling the discretion of the Court to appoint Commissioner to record cross-examination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involved complex question of title, complex question in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of the will etc., In such cases, as far as possible the Court may prefer to itself record the cross-examination of the material witnesses. Another contention raised is that when evidence is recorded by the Commissioner, the Court would be deprived of the benefit of watching the demeanour of witness. That may be so but, in ourview, the will of the Legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving Court''s time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that Order XVII Rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The Court would have the benefit of the observations if made by the Commissioner.
In the light of the views expressed by the Apex Court there cannot be any doubt whatsoever that the trial can be said to have commenced on the filing of the affidavit in relation to the chief-examination of a party since it would amount to the commencement of recording of evidence. Hence, there cannot be any doubt or controversy that the proviso would come into play. The proper function of proviso is to except something but of the Enactment or to qualify something enacted therein which but for the proviso would be within the purview of the Enactment.
It is no doubt true that in the main provision "at any stage" is there and on a careful analysis of the main provision and the proviso introduced by Amendment Act 22 of 2002 it is crystal clear that the said proviso was introduced to check applications of amendment of pleadings, so as to control the procrastination of the proceedings on the said pretext. In the present case long after filing the affidavit in relation to chief-examination which is permissible under law under the present Code, this application was moved. It is also pertinent to note that similar application was moved and the same was not pressed, whatever may be the reason. It is also pertinent to note that the affidavit relating to the chief-examination is totally silent about this aspect, and hence, it cannot be said that the application is bona fide and also it cannot be said that this is subsequent event which had been brought to the knowledge of the petitioner-plaintiff, so as to be assailed by the main provision of Order VI Rule 17 of the Code. The words "in spite of due diligence party could not have raised the matter" indicate yet another condition to be satisfied and unless this condition is satisfied post-trial amendment may have to be viewed with all care and caution. Liberality to be adopted in relation to pre-trial amendments, cannot be stretched too far and cannot be extended in the same vigour to the post-trial amendments too and if the same standard is adopted it would amount to doing violence to the amended provision especially the provisio which had been introduced by the Amendment Act 22 of 2002.
Hence, viewed from any angle, keeping in view the amended provisions and the journey of law in relation thereto, this Court is of the considered opinion that the Civil Revision Petition is devoid of merit and accordingly the same shall stand dismissed. No order as to costs.