PROMODE NATH SINHA ROY Vs. HARISHEE BAGDHI

JUDGEMENT

(1.) I have taken time to consider this case because it involves the construction of Order 18, Rule 5, 8 and 14, Civil P. C, and raises an issue of general interest. The suit was brought by the petitioners to recover Rs. 20, the value of a palm tree which the plaintiffs alleged that the opposite party defendant 1 had wrongfully cut down and sold. The suit was dismissed on the ground that the palm tree had been planted by defendant 1, and that he was entitled to sell it and retain the proceeds. The plaintiffs appealed. They contended that the decree of the trial Court could not stand because there was no legal evidence that the palm tree had been planted by defendant 1, as the evidence of the witnesses had not been recorded in the manner prescribed by Order 18.

(2.) The material rules are : (The judgment quoted Rule 5, 8 and 14 of Order 18, and proceeded). The learned, Subordinate Judge affirmed the decree of the trial Court, and dismissed the appeal. The plaintiffs thereupon obtained the present rule under Section 115, Civil P.C., for the purpose of setting aside the decrees passed by the lower Courts. The petitioners contend that, inasmuch as the evidence of the witnesses was not taken down in writing by the Judge himself (Rule 5), and the Judge did not make a memorandum (Rule 8), or cause a memorandum to be made (Rule 14), there was no legal evidence upon which the Court could have founded or passed a decree in favour of the defendants. <JGN>Page</JGN> 2 of 3

(3.) On the other hand the opposite parties urge that the evidence of a witness is "taken down in writting by the Judge," as well when it is dictated by him for a typist--which was the course followed in this case--as when he himself records it by means of a pen or a typewriter ; in each instance it is the Judge who determines the form, nay more, the very words of the narrative, and it makes no difference whether he uses a pen or a typewriter or a typist, for each is but the instrument that he employs to effect his purpose.