LALMANI Vs. BEJAI RAM CHAUDHARI

JUDGEMENT

(1.) This is an application in civil revision against an appellate order of the District Judge of Kurnaun upholding an order of the Court of first instance an Honorary Assistant Collector, refusing to accept an application for setting aside an ax parte decree. The question was whether service had been effected by tender to the defendant personally and refusal of the defendant to accept the notice. The process-server and a witness gave evidence to this effect and the lower appellate Court believed that evidence. Learned Counsel argued that a certain witness for a story of the defendant that he was absent from his house at the time had not been accepted by the trial Court. The name of this witness was Lachhi Ram The trial Court took the evidence of a witness Ratangiri who stated that he was present on the 15 or 16 of Phagurt last at the house of the defendant Lalmani and the chaprasi came for service during the absence of the defendant and his wife said that he was absent for the purpose of purchasing ghee. Below the evidence of this witness the Court has noted "Witness Lachhi was hearing the statement of witness No. 1 throughout, so he was rejected." The argument of Learned Counsel is that the Court was not authorized to make such an order but that the Court was bound to record the evidence of the witness Lachhi. It is not stated that the defence did ask the Court to record the evidence of Lachhi and in the affidavits by the defendant and by his counsel in the appellate Court which have been filed it is not stated that any such request was marie to the Court. The affidavit by Lalmani however does state that the witness was not allowed to appear. No written application for taking the evidence of the witness Lachhi was made to the Court. However even if it is assumed that such an application was made orally and the Court refused to take the evidence of this witness I do not consider that the law as expounded for the applicant in revision is, correct. Learned Counsel for the applicant could not point to any authority for his proposition nor indeed did he indicate-under what law the procedure in question is regulated. I have however found that Section 135, Evidence Act, states as follows: The order in which witnesses are produced and examined shall be regulated by the law and; practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the Court,

(2.) The universal practice in the Courts in India is that witnesses should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken. Learned Counsel argued that in the present case the presence of the witness was accidental and that his evidence was. on a different point. It is not correct to say that the evidence would have been, on a different point. In the affidavit of the defendant Lalmani it is stated-that he desired this witness Lachhi to depose about my being at Kapkote on the date when the summons is said to have been offered to me. This shows that the question of the date was important. Apparently, the defendant Lalmani alleged that he was making a tour of villages in the hills for the purpose of purchasing ghee and it was desired to show that on this particular date he was at this particular village Kapkote where the witness lives. The first line of the deposition of the previous witness Ratangiriis : "Stated that on 15 or 16 of Phagun last, etc." That is, this witness has referred to the date. It was therefore a matter which would have been of importance for the witness Lachhi to know what was the date which had been stated by the previous witness. For this reason it was highly objectionable that Lachhi should be present in Court when Batangiri was making his deposition. Now Section 135, Evidence Act, does not state what the Court is to do in case its directions for the order in which witnesses should appear are broken. I consider however that there is power for this purpose in Section 151, Civil P.C., which states: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

(3.) The presence of Lachhi during the examination of the, previous witness may well be termed an abuse of the process of the Court; and therefore under Section 151 the Court has inherent power to prevent that abuse. The order that Lachhi should not be heard as a witness for the defence is therefore an order which the Court is authorized to make under the provisions of Section 151, Civil P.C. Learned Counsel relied on certain English rulings for the proposition that under the circumstances of this case the Judge was bound to hear the witness. One ruling was reported in Cobbett V/s. Hudson (1852) 93 R.R. 1. On p. 3 the question was whether a party conducting his own case at a trial has a right to address a jury as an advocate and also to be examined as his own witness. That was quite a different question. Reference was made on p. 3 to the case of a witness being ordered to leave the Court who disobeyed the order, and it was held that the established practice in England was that the witnesses could be fined but that he should be permitted to give his evidence. Reference was further made to Chandler V/s. Horne (1842) 62 R.R. 819, where it was held that a witness should give his evidence although he had disobeyed an order to leave the Court while the case had been heard. Erskine, J., said: It used to be formerly supposed that it was in the discretion of the Judge whether the witness should be examined. It is now settled and acted upon by all the Judges that the Judge has no right to exclude the witness; he may commit him for the contempt, but he must be examined.