Trial in civil suit commences on filing of affidavit of examination in chief

Trial in civil suit commences on filing of affidavit of examination in chief

Mahadeo Vs Balaji

Bombay HC, Aurangabad Bench

04/09/2012

Writ Petition No. 9659 of 2010

About/from the judgment:

15. In Ajit Narsinha Talekar's case (Supra), learned Single Bench of this Court with reference to the observations made by Hon'ble Apex Court in Vidyabai's case commented as follows :

 

"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.

 

No different view is taken by other single benches of this Court in Bhagwandas Bubna's case and Vinod s/o Khimji Lodaya's case (Supra).

 

16. In view of the aforesaid discussion, the view expressed by learned Single Judges 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)", needs to be endorsed as legal and proper. In our considered view, the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/ es.

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