A. Introduction
At what stage does a civil trial commence while applying the proviso to Order 6 Rule 17[1] of the Code of Civil Procedure, 1908 (CPC)? The answer to this question is pending adjudication before the Supreme Court in Anita v. Anil.[2] In its order dated 13-9-2021, the Supreme Court noted two divergent views on this issue. One view is that of the Bombay High Court, and the other of the Calcutta High Court. The Bombay High Court is of the view that the filing of the affidavit in examination of chief would amount to commencement of trial[3] whereas the Calcutta High Court has taken the view that the expression “commencement of trial” in the proviso to Order 6 Rule 17 CPC “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”.[4] Both the Bombay and the Calcutta High Courts extensively rely on several Supreme Court judgments to support their respective views.
The purpose of this article, therefore, is to examine and analyse the law laid down by the courts in this regard. The article is divided into 5 parts. Part A is this introduction; in Part B, the author will analyse the certain relevant judgments of the Supreme Court on the issue; in Parts C and D, the author will examine the views of the Bombay and the Calcutta High Courts respectively; and lastly in Part E, the author will conclude this article suggesting certain legislative amendments to the proviso to Order 6 Rule 17.
B. The view of the Supreme Court
1. In Baldev Singh v. Manohar Singh (Baldev Singh),[5] the Supreme Court was considering a challenge against an order of the trial court (which was affirmed by the High Court) rejecting an application for amendment of a written statement.[6]
1.1 The trial court and the High Court rejected the application mainly on three grounds. The first ground was that the since the appellants had made certain admissions in the written statement, the amendment could not be allowed “permitting the appellants to withdraw their admission”.[7] The second ground was that “the question of limitation” could not be raised by way of an amendment and the third ground was that “inconsistent pleas in the written statement” could not be allowed to be raised by an amendment.[8]
1.2 The Supreme Court confined its judgment only to ground number two and three, namely, (a) on the question of limitation[9]; and (b) on inconsistent pleas.[10] However, while concluding its judgment, the Court referred to the proviso to Order 6 Rule 17 and noted that in the facts of the case before it, the trial had “not yet commenced” as the parties had not yet filed their documentary evidence.[11] On coming to the conclusion that the trial had not yet commenced, the Court observed that “commencement of trial” in Order 6 Rule 17 CPC “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”. After making these observations, the Court concluded that in the facts before it, there was no reason to “reject the application for amendment of the written statement” in view of the proviso to Order 6 Rule 17.[12]
1.3 According to the author, the aforesaid observations of the Court on “commencement of trial” would not constitute the ratio of the judgment but would be obiter dicta because this “expression of opinion” by the Court was on a point which was “not necessary for the decision” of the case.[13] As is stated above, the Court had confined its judgment only to the question of limitation and inconsistent pleas and therefore, its observations on “commencement of trial” were not at all necessary to decide the case before it. However, even though the observations in Baldev Singh[14]are obiter, the principle culled out vide these observations could be construed as declaration of law under Article 141 of the Constitution[15] and therefore, cannot be ignored. In Director of Settlements M.R. Apparao[16] (Director of Settlements), the Supreme Court observed:
- … An “obiter dictum” as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case….
(emphasis supplied)
2. In Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N.,[17](Ajendraprasadji) the Supreme Court was dealing with yet another case challenging leave to amend the written statement on the ground that “the appellants had not been able to show in context of the proviso” to Order 6 Rule 17 that before the commencement of trial, “the appellants could not have raised the matter in spite of due diligence”.[18]
2.1 After examining the facts of the case and the legislative history of Order 6 Rule 17[19], the Supreme Court concluded that the appellant was “precluded by the proviso” to Order 6 Rule 17 from amending the written statement.[20] However, the Supreme Court went on to rely on a previous decision delivered by it in Kailash Nankhu[21] (Kailash). According to the Supreme Court, it had been “held” in Kailash[22] that “the trial is deemed to commence when the issues are settled and the case is set down for recording evidence”.[23] With due respect to the Court, this is an erroneous reading of Kailash[24]. The Supreme Court in Kailash[25] was dealing with an application for condonation of delay in filing a written statement in an election petition filed in the Allahabad High Court.[26] The three questions[27] for determination before the Supreme Court were:
(1) Whether Order 8 Rule 1 CPC[28] is applicable to the trial of an election petition?
(2) Whether the rules framed by the Allahabad High Court governing election petitions would override the provisions of CPC? and
(3) Whether the time-limit of 90 days in the proviso to Order 8 Rule 1 was mandatory or directory?
The Supreme Court thereafter went on to examine the question that arose for consideration, namely, when does a trial of an election petition commence and what is the meaning of “trial” in “the context of an election petition”.[29] During the course of answering this question, the Court observed that “in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence”.[30] This observation is by no means the ratio of this judgment nor is it a principle of law laid down or declared by the Supreme Court. It is merely a passing observation and is not an authority on the point.
3. The next judgment on the issue is Vidyabai v. Padmalatha (Vidyabai).[31] The question involved in Vidyabai[32]was “whether pleadings can be directed to be amended after the hearing of a case begins.”[33] On the question of whether the trial had commenced or not in the case before it, the Court held that the trial had commenced. The relevant portion of the judgment reads thus:
- … The question therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding”.[34]
3.1 It is strange as to why the Court has used the words “commencement of proceeding” and not “commencement of trial” particularly when it had itself posed a question on whether the trial had commenced or not. The word “proceeding” would obviously be different from the word “trial”. The word “proceeding” is much wider in scope that the word “trial”. Nevertheless, the Court in Vidyabai[35]has referred to Ajendraprasadji[36] and Kailash[37]and after referring to both these judgments, the Court stated that the “ratio” in Kailash[38] was reiterated in Ajendraprasadji[39] which stated that “the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence”.[40] As has already been stated earlier, this is not the ratio laid down in Kailash[41] and neither is it obiter dictum. The Supreme Court also referred to several judgments delivered by it including Baldev Singh[42] (referred to above). On referring to Baldev Singh[43], the Court observed that it is “not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing” as in Baldev Singh[44], “the documents were yet to be filed and, therefore, it was held that the trial did not commence”.
3.2 Another judgment that the Court in Vidyabai[45] referred to was Union of India Major General Madan Lal Yadav (Madan Lal)[46] which was dealing with the interpretation of the expression “trial commences” in Section 123(2)[47] of the Army Act, 1950.[48] After referring to the dictionary meaning of the terms “trial” and “commence”, the Supreme Court went onto observe as under:
- It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial.[49]
It is submitted that though the Supreme Court in Madan Lal[50] was interpreting the expression “trial commences” in Section 123(2) of the Army Act, the principle of law laid down by the Court was that a trial would mean an “act of proving or judicial examination or determination of the issues” and this exercise would commence with the “first act or step necessary” to proceed with the trial.
4. Vidyabai[51]has subsequently been referred to in a recent judgment of the Supreme Court in Mohinder Kumar Mehra v. Roop Rani Mehra (Mohinder Kumar)[52] which dealt with a challenge to an order rejecting an application for amendment of plaint under Order 6 Rule 17.[53] After examining the various judgments on the issue, the Court observed that 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”.[54]
C. The view of the Bombay High Court
- In an important judgment delivered on a reference made to a Division Bench of the Bombay High Court in Mahadeo v. Balaji[55](Mahadeo), the High Court had to examine two questions: (i) whether a trial of a suit commences on the date of framing issues or from the date of filing of affidavit in lieu of examination-in-chief; and (ii) whether the proviso to Order 6 Rule 17 is attracted after framing of issues or after filing of affidavits lieu of examination-in-chief.[56] The High Court referred to Vidyabai[57], Ajendraprasadji[58], Kailash[59] and Madan Lal[60]as well as the expressions “proved”, “disproved” and “not proved” in Section 3 of the Evidence Act, 1872[61] and stated as under:
“10. … Thus, it can be seen that when the issues are framed there is no engagement of judicial mind in the exercise of weighing the material before it in order to assess its worth. What is actually done is to narrow down area of dispute and pinpoint the points required to be determined by the Court. In the words of the learned Single Judge the issues are framed in order to navigate the direction in which the trial shall proceed so as to give a clear idea to the parties regarding the burden of proof each one will have to bear and consequently about the right to begin with trial.”[62]
(emphasis supplied)
On the stage when the trial commences, the High Court stated,
“11. … A first act or step taken to prove, on [sic] disprove the facts in a suit, therefore, can be seen as the commencement of trial in a civil suit. Unmistakably, therefore, filing of an affidavit in lieu of examination-in-chief by the plaintiff can be regarded as first act or step taken by the plaintiff to prove his case, and consequently it can be regarded as commencement of a trial.”[63] (emphasis supplied)
After laying down the law in the aforesaid terms, the High Court answered the reference by holding that “the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination-in-chief of the witnesses” and the proviso to Order 6 Rule 17 CPC will come into play only after filing of the affidavits in lieu of examination-in-chief of witnesses.[64]
2. In another judgment delivered by the Single Bench of the Bombay High Court in Maratha Market People’s Cooperative Bank Ltd. v. Jeejaee Estate (Jeejaee Estate),[65] the High Court again dealt with the very same question. Though the High Court referred to Vidyabai[66] and Mohinder Kumar[67], it appears that the Division Bench judgment in Mahadeo[68] was not brought to the attention of the Single Bench. The Single Bench eventually held that “the trial commences (as contemplated under the proviso appended to Order 6 Rule 17CPC) when the first affidavit of evidence is filed”.[69] This view of the Single Bench, to an extent varies with the view of the Division Bench in Mahadeo[70], which had held that the trial commences from the date of filing of affidavits in lieu of the examination-in-chief of the witnesses.[71] While the Division Bench has stated that affidavits (plural) of evidence would be the stage of commencement of trial, the Single Bench has held that the trial commences from the date of filing the first affidavit of evidence. Therefore, it is respectfully submitted that the decision of the Court in Jeejaee Estate[72] is per incuriam as the Division Bench judgment of Mahadeo[73] was not considered by it. Mahadeo[74] had extensively referred to, relied on, and interpreted various decisions of the Supreme Court including Vidyabai[75] and thereafter came to a conclusion. If the Single Bench had noticed this judgment, it would have been bound to follow it.
3. Incidentally, Mahadeo[76] had been followed by another Single Bench of the Bombay High Court in Anil v. Anita,[77]whose order has been challenged before the Supreme Court by the respondent in Anita v. Anil[78] referred to in Part A of this article.
D. The view of the Calcutta High Court
1. In Sree Sree Iswar Radha Behari Jew v. Malati P. Soni[79] reference was made to the Division Bench of the High Court by a Single Bench on the following issue:
-
… Whether, in view of Vidyabai Padmalatha[80], “commencement of trial”, as envisaged in the proviso to Order 6 Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is, the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?
2. The High Court conducted a threadbare analysis of Vidyabai82 and the judgments referred to in Vidyabai[81] including Madan Lal[82], Kailash[83], Baldev Singh[84], Mohinder Kumar[85], Ajendraprasadji[86]. Reference was also made to the Bombay High Court judgment of Mahadeo[87]. As far as the observations in Kailash[88] on commencement of trial[89], the High Court rightly observed that this observation in Kailash[90]is not the ratio decidendi of the judgment; but the High Court further went on to state that the observations in Kailash[91]are obiter and are of “great persuasive value”.[92] However, in the author’s view, as has been mentioned earlier in Part B, the observation in Kailash[93]on commencement of trial is a stray observation and cannot even been considered as obiter dicta.
3. The High Court then went onto opine that there is a “distinction between when the trial stage commences in the life of a civil suit and when the trial actually commences” within the meaning of the proviso to Order 6 Rule 17.[94] According to the High Court,
- … Ordinarily, the trial stage commences in a suit immediately upon the issues being determined. However, it is not immediately thereupon that the trial in a suit commences in right earnest and the commencement of the trial is only when any witness takes to the box, whether to prove his affidavit of evidence or to prove any document to be tendered into evidence or to face any cross-examination for, it is at this stage that the court applies its judicial mind to examine the evidence or to consider whether a particular document is to be received in evidence or to consider the permissibility of the questions put in cross-examination. It is also open to the court to put its own questions to the witness; and, when the court does so, it surely applies its mind for the purpose of assessing the merits of the lis.[95]
4. The High Court further opined that a reading of Madan Lal[96]and Baldev Singh[97] that were relied on in Vidyabai[98] would imply that commencement of trial would be “something more than the mere receipt of any affidavit of evidence since the filing of such affidavit does not result in the court immediately examining it or applying its judicial mind to the same”.[99] The commencement of trial “is when the court applies its mind to assess the lis after the first affidavit of evidence is filed”.[100]
5. The High Court therefore, finally answered the reference by holding that “the expression ‘commencement of trial’ in the proviso to Order 6 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”.[101]
E. Concluding comments
- In the author’s opinion, the view of the Calcutta High Court is correct and that of the Bombay High Court is incorrect. In a civil proceeding, only the battle lines are drawn with the framing of issues and the filing of evidence affidavits. It is only when the witness steps into the witness box that the real charge begins by the counsel. This is when the trial starts.
- It is important to note that the purpose behind allowing amendments to pleadings is to avoid multiplicity of proceedings. However, at the same time, the parties cannot misuse the provisions of procedural law to delay a trial and the administration of justice. To remedy its misuse, Order 6 was initially amended in 1999[102] by deleting Rules 17 and 18 altogether to order to shorten the duration of litigation and increase the speed of the trial.[103] However, Rules 17 and 18 was restored once again in 2002[104] by inserting a proviso prohibiting amendments to pleadings after the trial had commenced unless the court concluded that despite due diligence, the amendment could not take place before the trial commenced.
- However, in the absence of a clear and definitive pronouncement by the Supreme Court on when a civil trial commences for the purpose of Order 6 Rule 17, the meaning of the expression “commencement of trial” would always be subject to different interpretations by the courts depending on the facts of each case before it. Therefore, in the author’s opinion, to remedy this situation, the legislature must up its game and make the following amendments to Order 6 Rule 17:
i) adding an Explanation after the proviso to Order 6 Rule 17, defining the expression commencement of trial,
or;
ii) amending the proviso to Order 6 Rule 17 by replacing “trial has commenced” and “commencement of trial” with “issues are framed” and “framing of issues”. In other words, amendment of pleadings should not be permitted after the issues are framed. An Explanation could be added clarifying that framing of issues would also mean and include framing of additional issues and recasting of issues under Order 14 Rule 5.[105]
The aforementioned suggested amendments may narrow the scope of disagreement on the interpretation of the expression “commencement of trial” and would also facilitate a faster conclusion of a trial.
*Practising Advocate at Bombay High Court and National Company Law Tribunal, Mumbai. Author can be reached at Twitter @DormaanD.
[1]Civil Procedure Code, 1908, Or. 6 R.17,
[3]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 16.
[4]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 38.
[6]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 500, para 2.
[7]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502, para 11.
[8]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502, para 11.
[9]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502-504, paras 12-14.
[10]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 504, paras 15 and 16.
[11]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 504, para 17.
[12]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 505, paras 17-18.
[13]Mohandas Issardas v. A.N. Sattanathan, 1954 SCC OnLine Bom 84.
[15]Constitution of India, Art. 141.
[16](2002) 4 SCC 638, 650-651.
[18]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 4, para 2.
[19]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 13, paras 33 to 36.
[20]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 14, 15-18, paras 41, 44-55.
[23]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 19, para 60.
[26]Kailash v. Nankhu, (2005) 4 SCC 480, 486-487, para 2.
[27]Kailash v. Nankhu, (2005) 4 SCC 480, 487, para 5.
[28]Civil Procedure Code, 1908, Or. 8 R. 1.
[29]Kailash v. Nankhu, (2005) 4 SCC 480, 490-491, para 13.
[30]Kailash v. Nankhu, (2005) 4 SCC 480, 490-491, para 13.
[33]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 411, para 2.
[34]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 413, para 11.
[40]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 415, para 15.
[48]Union of India v. Major General Madam Lal Yadav, (1996) 4 SCC 127, 135-136, paras 13 to 19.
[49]Union of India v. Major General Madal Lal Yadav, (1996) 4 SCC 127, 136.
[53]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 135, para 1.
[54]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 139, para 17.
[56]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 1.
“Not proved”.––A fact is said not to be proved when it is neither proved nor disproved.
[62]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283.
[63]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283.
[64]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 16.
[69]2019 SCC OnLine Bom 32, para 14.
[71]2012 SCC OnLine Bom 1283, para 16.
[78]SLP (Civil) No. 13691 of 2021, order dated 13-9-2021. [Pending uploading]
[79]2019 SCC OnLine Cal 9113, para 2.
[92]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 19.
[94]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 32.
[95]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113.
[99]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 33.
[100]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 36.
[101]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 38.
[102]Vide S. 16 of the Civil Procedure Code(Amendment) Act, 1999.
[103]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 138, para 14.
[104]Vide S. 7 of the Civil Procedure Code (Amendment) Act, 2002.