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When Does Trial In Civil Suit Commence? Filing Of Chief Affidavit Or Cross-Examination? Supreme Court To Examine

Shruti Kakkar

14 Sept 2021 12:34 PM IST

    • When Does Trial In Civil Suit Commence? Filing Of Chief Affidavit Or Cross-Examination? Supreme Court To Examine

    The Supreme Court has issued notice on a special leave petition which raises the issue regarding the stage of commencement of trial in a civil suit.The issue has arisen in the context of interpretation of Order VI Rue 17 of the Civil Procedure Code, which provides for amendment of pleadings. The proviso to Order VI Rule 17 states that no amendment application can be allowed after the "trial...

    The Supreme Court has issued notice on a special leave petition which raises the issue regarding the stage of commencement of trial in a civil suit.

    The issue has arisen in the context of interpretation of Order VI Rue 17 of the Civil Procedure Code, which provides for amendment of pleadings. The proviso to Order VI Rule 17 states that no amendment application can be allowed after the "trial has commenced", unless that court is convinced that in spite of due diligence, the party could not have made the application earlier.

    A bench comprising Justices Sanjay Kishan Kaul and MM Sundresh issued notice in the petition after noticing that divergent views have been expressed by High Courts on this issue.

    The Bombay High Court has taken the view that the filing of the affidavit in examination in chief would amount to commencement of trial. This view was followed in the order impugned in the SLP. On the other hand, the Calcutta High Court in Sree Sree Iswar Radha Beehari Jew v. Malti P. Soni -AIR 2019 Calcutta 131 opined that the trial commences when the cross examination commences.

    In view of this conflict of opinions, the Supreme Court issued notice and stayed the trial proceedings in the case.

    Supreme Court Judgments On This Issue

    The Supreme Court in Kailash v. Nanhku : AIR 2005 SC 2441, while considering an appeal arising from an order passed in election petition, observed that, in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence.

    Later in Baldev Singh v. Manohar Singh : AIR 2006 SC 2832, the court observed that the 'commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments.'

    In Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji : AIR 2007 SC 806, both these decisions in Kailash (supra) and Baldev Singh (supra) were referred, but the question was not answered.
    In Vidyabai v. Padmalatha AIR 2009 SC 1433, it was observed that the 'filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding'.
    In Mohinder Kumar Mehra v. Roop Rani Mehra AIR 2017 SC 5822, it was observed the trial of suit commences after issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.
    High Court Judgments
    The Andhra Pradesh High Court, in a 2004 judgment, had held that the trial can be said to have commenced on the filing of the affidavit in relation to the chief-examination of a party since it would amount to the commencement of recording of evidence. (Vempalli Srinivasula Reddy vs V.M. Ramakrishna Reddy 2006 (1) ALT 160))
    The Bombay High Court judgment impugned in this case, refers to these judgments and held that the filing of the affidavit in examination in chief would amount to commencement of trial. Earlier, in Mahadeo v. Balaji, it was opined that "the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/es."

    The Calcutta High Court in Sree Sree Iswar Radha Beehari Jew (supra) (2019) held that that the expression "commencement of trial" in the proviso to Order VI, Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier'

    The Kerala High Court has also taken the view that the trial in a suit commences on the date on which the affidavit in lieu of examination in chief of a party or his witness is filed for the purpose of recording evidence. The Gujarat High Court in a judgment delivered in 2014, had observed that the trial in a civil suit commences when the issues are settled and the case is set down for recording of evidence. 

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    Order VI Rule 17 of the Code of Civil ProcedureCode of Civil ProcedureJustice Sanjay Kishan KaulJustice MM Sundresh
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