It is quite clear that after the institution of plaint a suit is instituted and afterwards the requirement comes when the summons are to be sent to defendant along with the copy of plaint. After presentation of written statement by the defendant, the framing of issues is done and from there till the point the judgement is delivered, everything that takes place during the suit composes the trial of the suit. Talking exhaustively regarding the trial, the processes of summoning, attendance, examination of witnesses, special provisions for attendance of witnesses confined or detained in prison, adjournments and the entire process of hearing of suits comprises of the trial.
Talking about summoning witnesses, the intent of the legislature is to give a prior intimidation to the adverse parties so that they could know what is coming against them during the proceeding of the suit. Basically a summon issued to a witness is served so that is provides for the time and place which such witness is required to attend. At the same time, it consists of purpose of his attendance which could be for giving evidence or production of a document or even both and such documents must be described with reasonable accuracy. The procedure for the same is laid down in Order XVI which says that on or before such date as the court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. Therefore, Rule 1 requires the parties to submit list of witnesses within fifteen days to the court. It further provides that when a party desirous of obtaining summons for the attendance of any person shall file in court an application stating therein the purpose for which the witness is proposed to be summoned.
But there is also exception to the rule in case of omission to add names of witnesses as provided that the court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. But in case of failure or non compliance to the summons, it may have consequences ranging from issuance of warrant of arrest, attachment and selling off of property, imposition of fine which may exceed to five thousand rupees or even the court may order that person to furnish securities for his appearance and the default of which might lead him in the civil prison thereby.
Order 16A also provides for attendance of witnesses who are prisoners to give evidence in the court by virtue of the Amendment Act of 1976. While the provisions for adjournment are provided under Order XVI which provides that a party to the court may ask for adjournment that is a kind of stoppage or pause to the general proceeding. It is though not such appreciated but is not an unconstitutional provision. Having heavenly avoided on judicial scrutiny of the court for speedy trial of the suit, this provision henceforth functions on the discretion of the court. There must exists certain reasonable ground for putting the entire proceeding on hold which may range from sickness of parties or their pleaders or non service of summons or any other unavoidable reason. It has been held that the court has to first ascertain whether the grounds on which adjournment is sought is factually correct and then decide whether that ground is sufficient to grant adjournment.[1]
With regarding to hearing of suits in general, provided under Order XVIII it provides that the evidence of witness must be taken orally in open court in the presence and under personal direction of the superintendence of the judge. It not only imparts fairness of the trial but also provides for public scrutiny which is in consonance with administration of justice. It has been quoted aptly by Bentham that “It keeps the judge himself while trying under trial in the sense that the security of securities is the publicity”[2] This lengthy procedure was therefore realised to take a lot of time and now has changed to recording of oral evidence by the Court Commissioner.
Talking about the evidentiary procedure has been dealt with the Evidence Act, 1872, the rules of trial states that burden of proof lies on the person who would fail if no evidence is given on either side. So basically, plaintiff begins the case wherein he proves his case but there lies an exception as in the case where the defendant simply admits to the facts alleged by the plaintiff, the right to begin shifts to the defendant. Rule 1-3 provides for the whole procedure wherein the party beginning must state his case, prove claims and evidence while he is also responsible to answer all the questions. It has also been provided that the party who has the right to begin could not begin due to reasons such as late arrival, etc, the other party will get a chance to begin which must not be interrupted with.
The evidence is recorded, as previously stated, by the Commissioner who further provides it to the court. It is also realised that testimonies or oral evidences of witnesses may be tempered with and for reason of protection from the same, the provision is provided under Rule 16 regarding de bene esse examination. It means examination of a witness even before hearing when such witness is about to leave the jurisdiction of court or on any other which the court may think fit on its satisfaction that why should such evidence must be taken of that witness.
Therefore, as a concluding remark, it can be said that the whole process of a trial is an exhaustive process and the Code of Civil Procedure, while provisions for all the essential provisions and procedural law regarding it, in lines with the Law of Evidence being a pivotal law, extensively lays down provisions especially dealing with the examination of witness in regard to the trail and puts forth administration of justice effectively endeavouring to remove technical glitches whatsoever.
[1] Maharaja v. Harihar AIR 1990 All 49
[2] Scott v. Scott 1913 AC 417
