P.T. ANKLESARIA Vs. UNION OF INDIA

JUDGEMENT

(1.) This was a mammoth case in which an aggregate of over 50,000 documents were disclosed by the parties to the suit and the hearing which started on July 30, 1973, has proceeded for forty -five working days by the time the evidence of all sides was closed yesterday. It relates to a claim of several lakhs by clearance contractors against the Government of India in respect of a contract relating to foodgrains and a cross -claim by the Government against those contractors for certain deductions for breach of their obligations under the contract. It may be stated that the hearing of these two suits proceeded as a consolidated hearing under an order passed by my brother Nain on November 29, 1972. When the evidence was closed yesterday, the question arose as to the order in which the learned Counsel should address me.

(2.) AS the plaintiffs to Suit No. 432 of 1967 (the clearance contractors) had exercised the option under Order XVIII, Rule 3 of the Code of Civil Procedure of reserving their evidence on the issues on which burden of proof was on the Government, the question as to the order in which the learned Counsel should address the Court would have to be decided in reference to the provisions of the said rule. Before I go to that rule, however, I may refer to Order XVIII, Rule 2 of the said Code which lays down the general rule that, when evidence on both sides has concluded, the party, other than the one which had the right to begin, must 'address the court generally on the whole case.' It further provides that the party beginning may then 'reply generally on the whole case.' A careful reading of Order XVIII, Rule 2 shows two things: first, that it makes a distinction between an address and a reply to that address; and secondly, that it proceeds on the principle that the party which has to unfold its evidence first must have the last word in addressing the Court. Curiously enough, however, Order XVIII, Rule 3 with which the Court is concerned in the present case, does not use the term 'address' at all, but deals only with the 'reply' which is to be given to the evidence produced by the defendant on the issues in regard to which the onus is on the defendant, as well as the general 'reply' to the whole case. One thing which Order XVIII, Rule 3 makes clear is that it contemplates separate replies by each of the parties. In my opinion, however, each of those replies must, naturally and necessarily, be preceded by an address, as the plain dictionary meaning of the term 'reply' as well as the sense in which the Legislature has used the term 'reply' in Order XVIII, Rule 2 which is in pari materia, clearly show. Reading Order XVIII, Rule 3 in that manner, the procedure which it, in my opinion, lays down by clear implication is that the plaintiff must first address specially on the evidence led on the issues in regard to which the onus is on the defendant; the defendant must then reply specially to the plaintiff's address on that evidence; that must be followed by a general address by the defendant on the whole case; and ended up by a reply by the plaintiff generally on the whole case. The position, therefore, is that, in between the special address by the plaintiff on the evidence on issues in regard to which the onus is on the defendant and the general address by the plaintiff on the whole case, will be sandwiched addresses, which may be consolidated into one address by the defendant, both on the evidence on the issues in regard to which the onus is on the defendant, as well as on the whole ease. This order would, in my opinion, also be in conformity with the principle embodied in Order XVIII, Rule 2 to which I have referred viz., that since on the issues in regard to which the onus is on the defendant, it is the defendant who first places his cards on the table, he should have the last word with the Court on that evidence; and since the general evidence in the case is first led by the plaintiff, he should have the last word in addressing - the Court generally on the case. In my opinion, this is the only reasonable construction that can be placed on Order XVIII, Rule 3 of the Code of Civil Procedure which makes no express provision either for an 'address' by the plaintiff specially on the evidence on the issues in regard to which the onus lay on the defendant, or for a general 'address' by the defendant, on the whole case. It may, in passing, be mentioned that the Allahabad High Court has amended the provisions of Order XVIII, Rule 3 so as to make the position in regard to the order in which the parties are to address the Court quite clear, though what it provides is quite different from my interpretation of Order XVIII, Rule 3 as applicable to this Court. Whichever be the course preferred, it is desirable that an appropriate amendment clarifying the position should be made in Order XVIII, Rule 3 of the Code of Civil Procedure as applicable to this Court which contains these apparent lacunae. It should also be mentioned that Order XXXV, Rule 7 of the Rules of the Supreme Court in England contains provisions of an entirely different nature in regard to the order of addresses and is, therefore, of no assistance for the purpose of construing Order XVIII, Rule 3 of the Code of Civil Procedure. There is one thing which may, however, be noted, and that is, that Sub -rule (1) of Order XXXV, Rule 7 of the Rules of the Supreme Court in England gives the widest possible discretion to the Court to give directions in regard to the 'order of speeches at the trial.'

(3.) MR . C.J. Shah will reply at the end only to the addresses by Mr. Thakkar on the evidence led on the issues in regard to which the onus was on the government. This order will give the necessary opportunity to the clearance contractors' firm to reply to the case generally, and to the Government to reply to the firm's address on the evidence on the issues in regard to which the onus was on the Government itself and also to give a reply to the general address of Mr. Shambhu and will, therefore, meet the ends of justice, as required by Section 151 of the Code of Civil Procedure. I fix January 7, 1974 for hearing the addresses in the above order.