Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Maharashtra Small Scale … vs M. Surda Corporation on 13 July, 1983
Equivalent citations: (1983) 85 BOMLR 474
Author: A R.L.
Bench: A R.L.


Aggarwal R.L., J.

1. This is an application for review of the order dated July 7, 1983, ordering the witnesses of both the sides out of Court. The order bids adieu to the following practice as crystalised in the affidavit in support of the application for review after consultation with several senior counsel:-

It is the consistent practice of the Court that only the parties whose witness is in the box have to go out of Court during such examination.

2. The present suit is filed by the plaintiffs against the 1st defendant – a partnership firm and the 2nd, 3rd and 4th defendants in their capacity as partners of the 1st defendant-firm, for the recovery of the sum of Rs. 5,67,914-93 and costs. The defendants have made a counter-claim to render account of the amounts payable to them and for the purposes of the court-fees and jurisdiction, the counter-claim is valued at Rs. 6,00,000/-.

3. The plaintiffs have put their first witness in the witness-box. Recording of his evidence commenced on July 5, 1983 and is going on from day to day. On the third day, an enquiry was made by me whether Madanlal whose name has figured in the pleadings and in the correspondence prior to the suit would be examined by the defendants. The defendants’ learned Counsel Mr. D.R. Zaiwaia informed that there is possibility of Madanlai being examined. This enquiry further revealed that he was sitting in the court and so also one witness for the plaintiffs. The learned Counsel were informed that witnesses of both the parties could not remain present in court while the evidence was being recorded. The learned Counsel Mr. D.R. Zaiwala, however, stated that the presence of Madanlal is necessary to give instructions and without his assistance the matter cannot go on and Madanlal is the father of defendant No. 4. The learned Counsel also pointed out that as per the practice of the Court, a defendant can keep his witnesses present in Court while the evidence of the plaintiff and his witnesses is being recorded. Mr. D.R. Zaiwaia was, however, not definite about the said practice. It may be mentioned in fairness to Mr. N.A. Shah, learned Counsel for the plaintiffs, that according to his impression, such a practice did exist. In the circumstances, the plaintiffs’ witness was ordered to be out of Court, but Madanlal was allowed to remain in Court to enable Mr. Zaiwala to verify about the practice during the recess.

4. Now, in the absence of any affidavit on behalf of the plaintiffs, it is safe to set out below from the defendants’ affidavit in support of the application for review as to what transpired, according to them, after the recess :–

At 2-45 P.M. the learned Judge enquired our Counsel Mr. N.D. Vyas as to what the position was when Mr. Vyas stated that several senior Counsel were consulted during the recess, that the consistent practice of the Court has been that it is only the parties whose witness is in the box have to go out of the Court during such examination. It was also pointed out that my father’s presence was necessary to give instructions while the matter was in progress as also in the course of examination of the plaintiffs’ witnesses. It was also pointed out that no objection was made by the plaintiffs. However, His Lordship the Hon’ble Mr. Justice Aggarwal passed an order requiring my father Shri Madanlal Anand to leave the Court which order was complied with. At that time my Counsel Mr, Vyas did not press for speaking order.

5. The said affidavit, however, omits to mention that Mr. N.A. Shah had relied upon the commentary under Section 135 of the Evidence Act from Sarkar’s Evidence Act, 13th Edition, page 1315, to show that the Court has the power to order out of Court witnesses of the parties. The relevant passage is as follows:–

Where collusion among witnesses is suspected or there is reason to believe that any of them will be influenced or when required in the interests of justice, the Court will proprio motu or on the application of either party, order all the witnesses to withdraw execept the one under examination. Such an order, although not absolutely a matter of right, is rarely withheld. The order does not usually extend to a witness who is also a party, as his presence is necessary for proper conduct of the case. But when there are more than one plaintiff or defendant and all of them are intended to be examined, the rule should be applied.

6. After hearing both the counsel, I was unable to accept the soundness and fairness of the practice which allowed witnesses of the opponent to remain present in Court while the evidence of the other side and his witnesses is being recorded. Mr. Vyas did not want a speaking order when asked. Thus the defendants’ witness Madanlal was also ordered out of Court and the examination-in-chief of P.W. 1 continued. Mr. Zaiwalla, who was not present during the hearing after the recess, upon his return attempted to reargue the matter. This was not permitted as it would amount to a second hearing. Moreover, the junior counsel did not mention that the senior counsel was to argue the point. Mr Zaiwala again expressed his difficulty to go on with the matter unless Madanlal is allowed to sit in the Court and the learned Counsel obtains instructions on the spot, while the evidence is being recorded. It is obvious that such a difficulty would have been got around by taking instructions from Madanlal before the hearing had commenced or can still be obviated by taking instructions at the end of each day. However much the Court might try to co-operate with counsel, if counsel claims that he cannot go on with the matter, it is another thing.

7. On the next day, a review of the order is sought and against this shield or in disguise of review, the matter is reargued and case law cited. No attempt was made on behalf of the defendants to show for what reason the order dated July 7, 1983 ordering the witnesses on behalf of the defendants also out of Court is open to review. The application deserves to be rejected on that sole ground.

8. Mr. Zaiwala referred to an authority for the proposition that objection can be taken of the presence of the defendant’s witnesses when the defendant is examined and not when the plaintiff’s witnesses are examined and, therefore, the practice of this Court is consistent with that decision. Mr. Zaiwala also referred to the newly added Rule 3A to Order 18 of Civil Procedure Code, which now requires a party to give evidence before other witnesses. Shri Zaiwala submitted that there is no rule to order witness out of Court, but the Court has the discretion to order him out of Court if the Court has reason to suspect that the interest of justice would suffer by the presence of the witness and such a discretion has to be exercised on the application of the other side. Both these circumstances are absent in the present case. On the other hand, Mr. Shah contended that the existing practice is bad and it is only the right of the parties to remain present in Court and not of their witnesses. Mr. Shah submitted that he now makes an application that the witnesses of the other side should be ordered out of Court in the ends of justice.

9. Now, the newly added provision of Rule 3A in Order 18 of C.P.C. chalks out the course in which the witnesses are to be examined. Where a party is himself a witness in support of his case, he is now obliged to examine himself first, then followed by his witnesses. But if a party wishes to deviate from this order in which he is to appear, he has to make out a case for being examined at a later stage. The Court is required to give reasons for permitting this re-arrangement for the examination of the witnesses.

10. The first case relied upon by Mr. Zaiwala was of Sufoh Koran Singh v. Kedar Nath Tewari [1941] A.I.R. All. 314. In that case, the trial Court had refused 10 examine one Jaikaran Singh, one of the defendants to the suit, who was present in Court while his witnesses were being examined. The first appellate Court directed that the matter be placed before the Division Bench. The learned Judges referred to the judgment of Bennet J. in Lalmani v. Bijai Ram [1934] A.I.R. All. 340, in which it is held that 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, and a breach of this rule may well be termed as an abuse of the process of the Court and therefore under Section 151, Civil P.C., the Court had inherent powers to prevent that abuse and to pass an order directing that such a witness should not be examined. That there is such a practice admits of no doubt, but there is no rule of the Court to this effect, nor is there any provision of law in the Civil Procedure Code or in any other statute. Section 135, Evidence Act, to which reference was made by the learned Judge, only provides that 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. But this does not authorise a Court of law to refuse the examination of any particular witness who might have done something which is not very desirable.

11. Relying upon the facts of the case, Mr. Zaiwala urged that the objection in that case was taken when the witnesses of the defendants were examined and not when the plaintiff’s witnesses were examined. I am not impressed by this understanding of the judgment by Mr. Zaiwala. That case does not lend support to the said practice of the Bombay High Court as endeavoured on behalf of the defendants.

12. The second case relied upon by Mr. Zaiwala is that of Achyutana Pitchaiah Sarma v. Gorantla Chinna Veerayya [1976] A.I.R. A.P. 420. The question which fell for consideration was whether the Court has got power to order unexamined witnesses out of Court until their evidence is taken. It is to be noted that this question was not confined to the witnesses of the plaintiff only or of the party giving evidence. In dealing with this question, the learned Judge observed (at p. 421 para. 3):~

Neither the Evidence Act not the Code of Civil and Criminal Procedure contain any section or rule for ordering witnesses out of court although it is generally done by the courts as a matter of practice. In my view, the court has inherent power to regulate the business of the court in the way it thinks best or to make any order that may be necessary for the ends of justice.

I am also of the opinion that even in the absence of any specific provision in any enactment, the Court has power to order that no witness who has to give evidence should be present when the depositions of other witnesses are being taken until he himself is examined as a witness in full.

The learned Judge then referred to Halsbury’s Laws of England, Volume 15, Simonds Edition at page 439, equivalent to 4th Edition paragraphs 269 and 270. The statement of law contained in paragraph 269 is that at any time during the course of a trial, the judge may order witnesses in the case to leave the Court until called. Moore v. Lambeth Country Court Registrar (1969) 1 All. E.R. 782. Application for such an order may be made by either party. Southey v. Nash (1837) 7 C 2 p. 632. In Paragraph 270, it is stated that the power of the judge to exclude witnesses from the court is discretionary and is not a matter of right so far as the parties are concerned, although in a civil case the parties themselves may not be ordered to leave the court.

13. Relying upon the above statement, Mr. Zaiwala submitted that the Court can make an order for the witnesses to leave the Court when an application has been made by either party and not otherwise. Now, before dealing with this question, reference may be made to the following dealing with Order 38, rule 1, of the Supreme Court Practice 1982, Centenary Edition, Vol. 1, p. 641 (38/1/4), which speaks of “exclusion of witnesses from Court” :–

On the application of either party the Court may at .any time order all witnesses on both sides, other than the one under examination, to withdraw, but not to leave the Court again after giving evidence so as to communicate with other witnesses before they give evidence. (This practice was approved in In re Nightingale, Green V. Nightingale [1975] 1 W.L.R. 80). The order is discretionary, and notwithstanding Outram v. Outram [1877] W.N. 75, and Pennimah v. Hill, (1876) 24 W.R. 245, should not generally include the parties.

The practice relating to the exclusion of witnesses from the Court “does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the Court” (per Sir John Arnold P. in Tomlwson v. Tomlinson [1980] 1 W.L.R. 322, 327; [1980] 1 All E.R. 593, 596.

14. Before filing the application for review, Mr. Zaiwala, had submitted that the practice of the Court is that
a defendant can keep his witnesses present in Court while the evidence of the plaintiff and his witnesses is being recorded.

15. The soundness and fairness of this practice was not appreciated by me and I declined to enforce this practice and gave time to Mr. Zaiwala to be sure of himself about the practice. After verifying from several counsel, Mr. Zaiwala found that the practice is that “only the parties whose witness is in box have to go out of Court during such examination.” Does this practice mean that if the plaintiff’s witness is in box, the plaintiff has to go out of Court or his witnesses have to go out of Court or both while the evidence of the witness is being recorded?

16. In my opinion, whether there is any room to suspect collusion among witnesses or reason to believe that they will be influenced in shaping their testimony after watching the examination of the parties and their witnesses or whether any application has been made or not to keep the witnesses out, the safe and fair course is to keep witnesses of both sides out of Court and only the parties have the right to remain in Court during the recording of the evidence of the witnesses. The only “exception to this rule would be when both parties consent that they have no objection to the witness of either party remaining present in Court. As soon as the stage for recording is set and a party has put himself or his witness in the box, it should be the duty of the Associate to announce that all the witnesses of the parties are ordered out of Court room. Another aspect is that after the witness has given evidence, he should remain inside the Court, while the other witness is to be examined, so that he does not get the opportunity to communicate with the other witnesses before they step into the witness box.

17. With the above observations, the review application is rejected and the earlier order directing the plaintiff’s witnesses to remain out of Court is maintained. Costs to be costs in the cause.

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