FIRM SHEO PRASAD RAM PRASAD Vs. GOVIND PRASAD

JUDGEMENT

(1.) This is a second appeal which raises a very nice point of evidence, or rather the admissibility of evidence, a point which is constantly arising in various forms, and about which there is really a good deal of authority both in the English reports and in the Indian reports.

(2.) The appeal is brought by the defendant, whose defence has in substance bean struck out, on the ground that he has not been allowed to prove his real case, because it has been held against him that his real case consists of evidence which is rendered inadmissible by Section 92 of the Evidence Act. Inasmuch as the learned District Judge, who is now a member of this High Court, followed a reported decision, which seemed to be in point, by two Judges of this High Court which was undoubtedly binding upon him; he naturally decided in the way that he did. We are not making any complaint, and the existing practice is perhaps intelligible, but as a matter of fact it is extremely embarrassing to have to decide the admissibility, or otherwise, of a fundamental piece of evidence, tendered in support of defence, when one has only the vaguest idea as to what that evidence is. It is not only embarrassing but also dangerous to the parties because if the Court of appeal is compelled to interfere and order either a new trial, or further evidence to be taken, there is great temptation to the party tendering the evidence, so to frame his evidence as to fit it into the propositions which have been extracted; from the Court of appeal.

(3.) It is perhaps necessary therefore to utter a word of warning to the Court which will have to take the evidence again in this matter, that a substantial variation from the original statements tendered, or attempted to be made, at the first hearing should be regarded with suspicion; but at the same time it is desirable to utter a warning that suspicion ought not to be allowed to rest upon evidence which is additional and is really only developing the point which the defendant all along desired to make. A further warning seems necessary, owing to the old complaint of the lack of training in precise pleadings, and the vague and inartistic way in which pleadings are allowed to pass muster in these provinces it would be unjust, as this Court has said scores of times, to apply a rigid standard of scrutiny to a pleading which, however clumsy, was really endeavouring to set up the real defence, and is not flagrantly inconsistent with the story which the party attempts to support by his evidence. In a case of this kind it is true to say that whatever instructions are given to the pleader in the initial stages of the case, when the pleadings have to be framed, no body really knows what the case of either side is until the matter conies into Court; and as a matter of strict justice the fault, where the Court has to deal with a vague and clumsy attempt in a pleading be set up a definite defence, is not entirely on the shoulders of the defendant and his pleader. The law has, for excellent reason, and as the result of long experience, provided machinery by which the other side, if there is doubt, prolixity, or vagueness about the pleading may apply to the Court for an order for particulars, and the plaintiff in this case could undoubtedly have applied to the Court to direct the defendant to give further and better particulars of the defence sought to be set up under paragraph.3 of the further pleas. We recognize, however, that this machinery, valuable though it is for the purpose of clearing ground before the parties come into Court, is almost wholly ignored in the proceedings of the trial Courts, and little or no notice is taken of it until the unfortunate Court of appeal is asked to disentangle the knot into which the case has tied itself for lack of adequate preparation.