IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Writ Petition No. 9659 of 2010
Decided On: 04.09.2012
Mahadeo
Vs.
Balaji
Coram:N.H. Patil and U.D. Salvi, JJ.
i] Whether the view taken by learned Single Judge of this Court in ” Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others” 2010 (5) Mah.L.J. 481, ” Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others” (MANU/MH/1594/2009 : 2010 (1) Bom. C.R. 218, and ” Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the issues or that it commences from the date of filing of affidavit in lieu of examination-in-chief?ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witness/ es?
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.
i] Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others”2010 (5) Mah.L.J. 481,ii] Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others” (MANU/MH/1594/2009 : 2010 (1) Bom. C.R. 218, andiii] Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)
i] Vidyabai and others V. Padmalatha and another; (2009 AIR SCW 899),ii] Kailash V. Nanhku and others; MANU/SC/0264/2005 : (2005) 4 SCC 480iii] Ajendraprasadji N. Pande and another V. Swami Keshavprakeshdasji N. & others; (2007 AIR SCW 513)
It is submitted that the date of settlement of issues is the date of commencement of trial [Kailash V. Nankhu & Ors. (Supra)] Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination in chief as date of commencement of trial, the matter will fall under proviso to order 6 Rule 17 CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 & 2 (appellants)……..The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash V. Nankhu & Ors. (Supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word ‘trial’ in the context of an election petition? In a civil suit, the trial begins when the issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of elections petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word ‘trial.
1. Framing of issues :(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.(4) Issues are of two kinds :(a) issues of fact,(b) issues of law.(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
It would, therefore, 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.
“Proved”, A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers it existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.“Disproved”, A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.” Not Proved”, A fact is said not to be proved when it is neither proved nor disproved.
The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding,
Relying upon a decision of the Supreme Court in Vidyabai V. Padmalatha, MANU/SC/8401/2008 : AIR 2009 SC 1433, counsel for the respondents submitted that the trial commence on issues being framed. He invited my attention to paragraph 8 of the said decision which reads thus :The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding
placing strong reliance on the sentence “the date on which the issues are framed is the date of first hearing”, counsel submitted that the moment the issues are framed the trial commences. In my view, this is misreading of the judgment. It is a settled principle of law that judgments of Courts are not to be read as a statute. A sentence in the judgment cannot be read in isolation. It must be read in the context in which it appears and cannot be read as a provision of a statute. The expression ” the date of first hearing” appearing in second sentence of the above quoted paragraph is to be read in the context of subsequent sentence which reads ” Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding.” The Supreme Court has only said :framing of issues is the first date of hearing” but that does not mean that on framing of issues the trial has commences. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Some times the matter is not even called out because the Court remains busty in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. That is commencement of the trial.