Section G. --- Documentary Evidence

 

49. Main provisions with regard to production of documents. The main provisions of the Code with regard to the production of documents by the parties are as follows: -

a)      According to Order VII, Rule 14, when the plaintiff sues upon a document in his possession of power, he shall produce it in Court when the plaint is presented and deliver the documents itself or a copy thereof to be filed with the plaint. If he relies on any other documents, whether in his possession or power or not, as evidence in support of his case he shall enter such documents in a list to be annexed to the plaint. If the documents are not so produced or entered in the list, they cannot be proved at a later stage without the leave of the Court, unless they fall within the exception given in sub-rule 2 of Rule 18 of Order VII.

b)      Order VIII, Rule 1 (as amended by the High Court), similarly required the defendant to produce with his written statement any documents upon which his defence or claim to set-off is founded. The defendant must also annex to the written statement a list of all documents on which he intends to rely ---- whether in his possession or power or not in support of his defence or claim to set-off.

c)      Order XIII, Rule 1, lays down that the parties shall produce at the first hearing of the suit documentary evidence of every description in their possession or power on which they intend to rely, and which has not been already filed, in Court and all documents which the Court has ordered to be produced. If the documents are not so produced at the first hearing they cannot be produced at the later stage unless good cause is shown to the satisfaction of the Court.

 

 

50. List of documents must be filed. Whenever any documents are produced by the parties in the Course of a suit, whether with the plaint or written statement, or at a later stage, they must always be accompanied by a list in the form given below. In column 3, the Court should note the manner, in which the document was dealt with, i.e., whether it was admitted in evidence or rejected and returned to the party concerned, or impounded, as the case may be.

List of documents produced by plaintiff/defendant under Order XIII, Rule 1, C.P.C.

IN THE COURT OF                                          AT                                           DISTRICT.

SUIT TO   ………………………………… of 19

……………………………………………… Plaintiff

                                                               Versus

………………………………………………Defendant.

List of documents produced with the plaint (or at first hearing) on behalf of plaintiff (or defendant).

 

 

 

This list was filed by                               this                               day of                19

 

SI.

No.

 

Description

and date,

if any, of the

document

 

What the document is intended to prove

 

If brought on the record, the exhibit mark put on the document

 

If rejected, date or return to party, and signature of party or pleader to whom the document was returned

 

 

 

Remarks

1

         2

         3

4

 

       5

 

 

 

 

 

 

 

 

                                                                                                           

Signature of party or pleader    producing the list

Note. ---- Judicial Officers should instructed all petition-writers practicing in their Courts to prepare lists in the above form for all documents intended to be produced in Court.

 

51. Documents should be produced at the first hearing. The Court should formally call upon the parties at the first hearing to produce their documents and should make a note that it has done so. Forms have been prescribed by the High Court for the examination of the parties with reference to their documents and these should be invariably used. If the printed forms are not at any time available, the questions prescribed invariably used. If the printed forms are not any time available, the questions prescribed therein should be asked and the questions as well as the answers noted. If these instructions are strictly carried out, there will be no justification for plea frequently put forward by ignorant litigants with regard to the late production of a document that they had brought the documents at the first hearing but were not called upon to produce it.

 

52. Documents produced at a later stage. The above provisions as regards the production of the documents at the at the initial stage of a suit are intended to minimize the chances of fabrication of documentary evidence during the course of the suit as well as to give the earliest possible the notice to each party of the documentary evidence relied upon by the opposite party. These provisions should, therefore, be strictly observed and if any document is tendered at a later stage, the Court should consider carefully the nature of the document sought to be produced (e.g., whether there is any suspicion about its genuineness or not) and the reasons given for its non-production at the proper stage, before admitting it. The fact of a document being in possession of a servant or agent of a party on whose behalf it is tendered is not itself a sufficient reason for allowing the document to be produced after the time, prescribed by Order XIII, Rule 1. The Court must always record its reasons for admission of the document in such cases, if it decides to admit it (Order XIII, Rule 2).

 

53. Documents with a suspicious appearance or executed on unstamped or insufficiently stamped paper. Should any document which has been partially erased or interlined, or which otherwise presents a suspicious appearance, be presented at any time in the course of proceedings a note should be made of the fact and, should a well-founded suspicion of fraudulent alteration of forgery subsequently arise, the document should be impounded under Order XIII, Rule 8 and action taken under sections 340, 342 and 344 of the Code of Criminal Procedure. Similarly, should any document be presented which appears to have been executed on unstamped paper or insufficiently stamped paper, action should be taken under sections 33 and 35 of the Indian Stamp Act, 1899.

 

54. Distinction between mere production and admission in evidence.  Courts should be careful to distinguish between mere production of documents and their ‘admission in evidence’ after being either ‘admitted’ by the opposite party or ‘proved’ according to law. When documents are ‘produced’ by the parties they are only temporarily placed on the record subject to their being ‘admitted in evidence’ in evidence in due course. Only documents which are duly ‘admitted in evidence’ form a part of the record while the rest must be returned to the parties producing them (Order XIII, Rule 7).

 

55. Exhibiting of documents. Every document ‘admitted in evidence’ must be endorsed and signed or initialed by the Judge in the manner required by Order XIII, Rule 4, and marked with an exhibit number. Documents produced by the plaintiff may be conveniently marked as Ex. P.1., Ex. P.2, etc., while those produced by the defendant as Ex. D-1, D-2, D-3, etc. to ensure strict compliance with the provisions of Order XIII, Rule 4 (the importance of which has been emphasized by their Lordships of the Privy Council on more than one occasion, e.g., Indian Law Reports 38 Allahabad 627 at page 633) each Revenue Court should be supplied with a rubber stamp in the following form: -

                         Suit No.                                                                        of                        19

Title                          Plaintiff                          Versus                                                   Defendant

Produced by

On the                                                              day of                                                       19

Nature of document

Stamp duty for Rs.                                                                                                P. (is not) correct

Admitted as Exhibit No.                                                                                                   Collector.        

 

The entries in the above form should be filled in at the time when the document is admitted in evidence under the signature of the Revenue Officer. Details as to the nature of the document and the stamp duty paid upon it are required to be entered in order that Courts may not neglect the duties imposed on them by section 33 of the Indian Stamp Act II of 1899. Revenue Officers should see that all Courts subordinate to them are supplied with these stamps.

 

56. Documents how to be dealt with at the trial. Every document which a party intends to use as evidence against his opponent, must be formally tendered by him in evidence in the course of proving his case. If a document has been placed on the record it can be referred to for the purpose. If it is not on the record, it must be called from and produced by, the person in whose custody it is.

No application for the production of a Court record should be entertained unless it is supported by an affidavit and the Court is satisfied that the production of the original is necessary (Order XIII, Rule 10).

 

57. Documents admitted by the opposite party to be endorsed and numbered. (a) If the opponent does not object to the document being admitted in evidence an endorsement to the effect must be made by the revenue officer with his own hand and, if the document is not such as is forbidden by the legislature to be used as evidence, the revenue officer will admit it, cause it, or so much of it as the parties may desire, to be read and then endorse and stamp it in the manner already described. Otherwise it must be proved in accordance with law before it is so endorsed and stamped. The endorsement and stamp will show that the document is proved. It is to be remembered that the word ‘proved’ used in the context here means ‘that judicial evidence has been led about it’ and does not imply ‘proof’ in an absolute sense.

(b) Document object to be the opposite party. If, on the document being tendered, the opposite party objects to its being admitted in evidence two questions commonly arise: first, whether the documents is authentic, or, in other words, is that which the party tendering it represents it to be; and second, whether supposing it to be authentic, it is legally admissible in evidence as against the party who is sought to be effected by it. The latter question, in general, is a matter or argument only; but the first must, as a rule, be supported by such testimony as the party can adduce. It may be noted here, that, under Order XII, Rule 2, of the Code of Civil Procedure, either party may, by a notice through the Court invite the other party t inspect the documents specified in the notice at a specified time the place, and admit, within forty-eight hours from the time fixed for such inspection the genuineness of such documents: that unless such notice be given no costs of proving the document should ordinarily be allowed; and that if on the other hand, notice is given and the admission is, without sufficient cause, withheld, the party refusing to admit the document must bear the expense of proving it whatever may be the result of the suit.

 

58. Inconvenience caused by neglect of foregoing directions. Owing to the neglect of the foregoing directions as regards endorsing and stamping of documents it is often impossible to say what papers on the file constitute the true record; copies of extracts from public or private records or accounts, referred to in the judgment as admitted in evidence, are often found to be not ‘proved’ according to law, and sometimes altogether absent.

 

59. Objections as to the admissibility or relevancy of the document. All legal objections as to the admissibility of a document should, as far as possible, be promptly disposed of, and the Court should carefully note the objection raised and the decision thereon.

The Court is also bound to consider, suo motu, whether any document sought to be proved is relevant and whether there is any legal objection to its admissibility. There are certain classes of documents, which are wholly in-admissible in evidence for certain purposes, owing to defects such as want of registration etc., (see e.g., section 49 of the Indian Registration Act.) There are others in which the defect can be cured, e.g., by payment of penalty in the case of certain unstamped or insufficiently stamped documents.

 

60. Mode of proof of documents. As regards mode of proof, the provisions of the Indian Evidence Act should be carefully borne in mind. The general rule is that documents should be proved by primary evidence, i.e., the document itself should be produced in original and proved. If secondary evidence is permitted, the Court should see that the conditions under which such evidence can be let in, exist. If an old document is sought to be proved under section 90, the Court should satisfy itself by every reasonable means that it comes from proper custody. Under the Bankers` Books Evidence Act, 1891, certified copies can be produced, instead of the original entries in the Books of Banks, in certain circumstances, and a similar privilege is extended under Rule 78 of the Punjab Co-operative societies Rule, 1963, to entries in books of societies registered under the Punjab Co-operative Societies Act, 1961.

 

61. Examination of witnesses identifying documents. There are certain points which the Courts should bear in mind, when the signature or attestation of document is sought to be proved.

Before a witness is allowed to identify a document he should ordinarily be made, by proper questioning, to state the grounds of his knowledge with regard to it. For instance, if he is about to speak to the act of signature, he should first be made to explain concisely the occurrences which led to his being present when the document was signed; and if he is about to recognise a signature on the strength of his knowledge of the supposed signer’s handwriting, he should first be made to state the mode in which this knowledge was acquired. This should be done by the party who seeks to prove the document. It is the duty of the Court, in the event of the witness professing ability to recognize or identify handwriting, always to take care that his capacity to do so is thus tested, unless the opposite party admits it.

 

62. Signature by the pen of another. The signature of one person which purports, or which appears by the evidence, to have been written by the pen of another is not proved until both the fact of the writing and the authority of the writer to write the same on the document is proved.

In the case if an illiterate person it should be proved that he understood the contents of the document.

As regards proof of thumb-marks, see Chapter 9, ‘Finger Impressions’ of Volume IV, High Court Rules and Orders, 1966.

 

63. Proof of registered documents. Attention is invited to the proviso added to section 68 of the Indian Evidence Act, 1872, by Act XXXI of 1926, which lays down that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

 

64. Certified extracts from Settlement records bearing on the case should be placed on the records. It frequently happens that, although the Wajib-ul-Arz or Riwaj-i-Am or other Revenue record is referred to by the parties and by the Court itself, as affording most important evidence, there is no certified extract or copy with the record of the entries relied on. Not only has there been no formal proof of such copy, but often, when there is any copy at all, it is incomplete, or so carelessly written as to be unintelligible.  It becomes necessary to call for originals, thus causing damage to the records themselves, and delay and inconvenience to the parties to the suit. It is the duty of Appellate Courts to see that the Courts subordinate to them have proper extracts or copies of relevant entries in Settlement records made, verified and placed in the record.

 

65. Revision of record before judgment. (i) It is the duty of the Court before proceeding to judgment under Order XX, Rule 1 of the Code of Civil procedure, finally to revise the record which is to form the basis of its judgment and to see that is contains all that has been formally admitted in evidence, should be returned to the parties.

(ii) Duties of Appellate Courts in such matters. Appellate Courts should examine the records of cases coming before them on appeal with a view to satisfying themselves that subordinate Courts have complied with the provisions of the law on the subject; and should take serious notice of the matter when it appears that any Court has failed to do so.

 

66. Return of documents. Documents admitted in evidence can be returned to the persons producing them, subject to the provisions of Order XIII, Rule 9(as amended by the High Court by notification No. 563-G, dated the 24th November, 1929). If an application is made for return of a document produced in evidence before the expiry of the period for filing an appeal or before the disposal of the appeal (if one is filed) care should be taken to require a certified copy to be placed on the record, and to take an undertaking for production of the original, if required.

 

Section H ---- Production of Revenue Records

 

67. Requisitions of Appellate Courts to be sent to Deputy Commissioner. Requisitions by Commissioners for original revenue records will be addressed to the Deputy Commissioner, who will take measures to transmit such records to the Court calling for them. Such Court will be responsible for the safe custody of the records, and if in any case a record is found to have been damaged in the Court of the Commissioner or Financial Commissioner, the Deputy Commissioner will report the fact to the Court concerned and to the Financial Commissioner within twenty-four hours of its being returned.

 

68. Production by Special Kanungo, or Patwari. Original Revenue records will be produced in Courts of first instance by the Special Kanungo, or Patwari deputed for the purpose in accordance with the instructions contained in Chapter 9, Volume 1, of the High Court Rules and Orders as amended from time to time.

 

Briefly, the procedure to be followed in such cases is as under: -

                                 I.      The Court in which the suit is pending issues a summons to the Special Kanungo, or Patwari deputed for the purpose who, after preparing his excerpt, goes to the Court on the date fixed, taking with him the revenue records from which the excerpt has been complied. He is then placed in the witness box. Counsel thus has the opportunity of comparing the excerpt with the original, and of examining him on any points he chooses.

                              II.      Parties who desire to summon the Special Kanungo or Patwari concerned as a witness with his records must be required to state succinctly and in writing the point on which information is required, and the application must be sent along with the summons to the Special Kanungo or Patwari concerned. The Court must see that the application is in a readily intelligible form before they issue it, and the practice, where it occurs, of sending for the Special Kanungo or Patwari concerned to tell what is required must be discontinued though Courts may also issue written instructions, or supplement or correct the application.

                            III.      Courts must be on their guard against using the Special Kanungo or Patwari concerned for purposes for which he is not intended. e.g., he is not to be required to give opinion, he is not to be used as a local Commissioner, or to be asked to provide instances in support of or to refute an alleged custom. Courts must also see that, if Special Kanungo or Patwari  is required, he is summoned for the first hearing after issues are framed and not, as sometimes happens at present, at the end of the case. They must also never fail to ask him on oath whether the excerpt is in accordance with the revenue records.

                           IV.      The excerpt prepared by the Special Kanungo is not evidence unless proved and cannot be used as such. His cannot be allowed to go to outlying Courts because he cannot take the revenue records with him, and without that there would be no check over his excerpt. It is, however, very desirable that outlying Courts should be able to utilize the Special Kanungo, and as the best practicable methods of securing that object, Presiding Officers of outlying Courts may issue either interrogatories for the Special Kanungo or an open Commission to a senior official at headquarters ordinarily and, unless there is some special reason to the contrary, District Revenue Officer or an officer not below the rank of an Extra Assistant Commissioner. This official, who will have other duties and is described in the instructions as the officer-in-charge, will then comply with the directions given, summon the Special Kanungo, record his statement on oath and make the return to the Court. In this connection attention is drawn to Order XXVI, Rule 18 (1), of the Code of Civil Procedure. The issue of a Commission should not become a source of unnecessary delay, and the officer-in-charge should in the absence of very strong reasons proceed in the absence of parties if they do not appear. Parties should be informed that their appearance at headquarters is optional if interrogatories are issued.

 

69. Duty of Courts in such matters. In every case it is the duty of the Court to insist: -

(a)                 on the plaintiff filing with the plaint the statement referred to in paragraph 13 supra;

(b)                on each party filing certified copies or extracts of all relevant entries on which it relies.

 

 

70. Duties of Appellate Courts in calling for revenue records. Appellate Courts should refrain from calling for original records unless it is absolutely necessary for a determination of the case and if the necessity arises from the neglect of the Court of first instance to comply with the instructions here issued, such Court should be severely dealt with by the Appellate Court in the exercise of the functions of administrative control vested in it.

 

71. Inconvenience resulting from a neglect of the orders pointed out. Where Revenue Courts neglect to make the parties supply proper copies or extracts of relevant entries, inconvenience is caused (1) to the Revenue authorities in being required to produce original records unnecessarily; and (2) to Appellate Courts from the fact that all evidence necessary for a proper decision of the case is not actually on the records, and that references are made to revenue records which must be called for before the appeal can be decided. The revenue records themselves moreover often sustain injury in being sent from Court to Court, while the work of the Revenue Department may be delayed by their records being retained for long periods by Revenue Courts. At the same time, the Revenue authorities of districts should clearly understand that one of the chief objects of the more important standing records-of-rights is to supply reliable evidence for the decision of land suits by Revenue Courts; that the requirements of such Courts must be complied with; and that such records must be freely available to Courts engaged in investigating and deciding questions affecting land or interests in land.

 

72. Deputy Commissioners to bring to the notice of the Financial Commissioner the case of any officer who systematically fails to comply with the orders on the subject. The Financial Commissioner will be prepared to take proper notice of the action of any Revenue Court which disregards the directions as to the manner in which original revenue records are to be referred to, and Deputy Commissioners as Collectors, should bring to the notice of the Financial Commissioner through the usual channel, the case of any officer who systematically fails to comply with the orders on the subject.

 

Section J. ---- Attendance of Patwaris in Revenue Courts

 

73. Patwaris not to be unnecessarily summoned. Officers presiding over Revenue Courts should be careful to see that Patwaris are not summoned unnecessarily to give merely formal evidence regarding entries in the village records and annul papers, information as to which could be as well obtained from an inspection of the records in the District Office. It should be remembered that Patwaris have very important duties to perform, and that the discharge of these duties should not be hindered by making them attend Court except when examination as witnesses is really necessary. It is of great importance that they should not be called away at times appointed for harvest inspections. In view of these considerations the instructions are given, in the succeeding paragraphs.

 

74. Patwaris not to be summoned during Girdawari time. Officers presiding over Revenue Courts should not summon Patwaris (except in cases of great urgency) during the times when the principal crop girdawaris are going on, viz., 22nd September to 7th November and 22nd February to 7th April.

Patwaris should be summoned only when their presence is absolutely necessary in the opinion of the Courts and the evidence of the Kanungo is insufficient. The question whether urgency exists will be decided by the Revenue Court.

 

75. Patwaris to be summoned through the Tehsildars. Courts to furnish Patwaris with certificates showing attendance. When Revenue Court requires the attendance of a Patwari at a time other than that above referred to, such Court should forward the summons to the Tehsildar as principal revenue authority of the Tehsil to which the Patwari belongs. The Tehsildar should serve the summons with as little delay as possible. A Certificate should be furnished by the Court to every Patwari who attends, in obedience to summons, showing the date of his appearance before the Court and date on which he was dismissed.

 

76. During Settlement, Patwaris to be examined by Commission. When a settlement is in progress it is especially undesirable that Patwaris should be summoned to attend in the Revenue Courts; and when they are required to give evidence which cannot be obtained in the manner indicated in the preceding paragraph, this should usually be obtained by the issue of a commission under Order XXVI, Rule 4(1) (c) of the Code of Civil Procedure. Such commissions should ordinarily be addressed to the Settlement Tehsildar of the Tehsil, but any wish expressed on this point by the Settlement Officer should be responded to, and the period to be ordinarily allowed for the execution of commission should be arranged in consultation with him.

The Revenue Court issuing the commission should always not thereon the date to which the case has been adjourned, the officer to whom the commission is sent should then be careful either to return the commission by that date, or to inform the Court, before such date, of the circumstances which will prevent the return of the commission within the time fixed and what further time will be required.

 

Section K. ---- Commissions and Letters of Request

 

77. General. The general law as to Commissions and Letters of Request is contained in Sections 75 to 78 and Order XXVI of the Code of Civil Procedure, and the forms to be used are Nos. 7 to 8 of Appendix H of Schedule 1 of the said Code.

 

78. Expenses of Commission. Applications for the issue of commissions should be made as early as possible. Notice of any such application should be given to the other side. If, the application is granted, the Court should fix a sum for the expenses of the Commission, which should ordinarily, provide a reasonable fee to the Commissioner. If, at any time the sum so fixed is found to be insufficient, it may, for special reason, be increased by the Court. When the Commission is executed to the satisfaction of the Court, the full sum fixed should be paid to the Commissioner; but where the Commission is not executed at all or not fully or satisfactorily executed or the work done turns out to be less than was expected, it will be in the discretion of the Court to direct a less amount to be paid, or to make any other order in the matter which it thinks just and proper in the circumstances.

 

79. Issue of Commission to Revenue officials. The following directions relate to the issue of commissions to Revenue officials: -

                                 I.      No Revenue Court, of grade lower than the Court of the Collector, shall issue a commission to a Revenue Official to make a local investigation or to examine accounts or to make a partition of immovable property, not paying revenue to Government, except with the previously obtained sanction of the Deputy Commissioner.

                              II.      When a commission is issued under the preceding rule to any Revenue official below the rank of Tehsildar, moderate fees, may be allowed by the Court issuing the commission, if such Court is satisfied with the manner which the commission has been executed, and considers the services rendered sufficiently onerous to deserve remuneration;

Provided that in the case of commission issued by a Court subordinate to that of the Collector, no fees shall be allowed except with the approval of the Deputy Commissioner, and of such amount as he considers appropriate.

 

80. Issue of Commissions for local investigation, etc. Whenever it becomes necessary in the course of a suit to appoint a Commissioner to make a local enquiry or to examine accounts (see Order XXVI), the Revenue Officer who makes the order for such appointment should write the order with his own hand, and specify therein: -

a)      the precise matter of the enquiry;

b)      the reason why the evidence bearing on that matter could not reasonably be taken in the usual way at the trial in Court.

 

81. Duties of Commissioner so appointed. The Commissioner’s duties should be strictly limited by the order to such matters as taking accounts and depositions of witnesses, inspecting the land or other subject of dispute and reporting to the Court, either by means of a map or plan, or in writing, or both, the existing physical features of the subject inspected, its boundaries and situation, relative to other subjects, and so on, as the case may be. The functions of the Commissioner are thus limited to procuring evidence and information for the purpose of the trial; and this evidence, including the maps, reports, and record of evidence made by the Commissioner must be adduced in open Court before the parties and placed on record like all other evidence. The Court has no power to depute to the Commissioner the final determination of any issue between the parties.

 

82. Selection of Commissioners. Great care should be exercised by the Courts in selecting persons for appointment as Commissioners for the purpose of making local inquiries; and Deputy Commissioner should exercise strict supervision over the action of Subordinate Courts in this respect. The habitual employment of the same persons should not be encouraged. The issue of commissions to petition-writers and persons who hang about the Courts should not be permitted.

 

83. The same. Courts Readers or other ministerial officers should never be appointed to make local investigation, such as finding out the market value of the property, etc. Such Commissions should be issued wherever possible to retired Revenue Officers or professional men, such as engineers, contractors, auctioneers and accountants.

Commissioners to examine accounts should be selected from men competent in the particular form of accounts. It is absolutely futile to issue commissions in a particular form of account to a person who is unable even to read the script in which those accounts are written.

 

84. Deleted.

 

85. Letters of Requests to a foreign country. Letters of Request for execution in a foreign country should invariably be sent through the State Government. They should be accompanied by a complete list of questions to be put to the witness. Translations of the Letter of Request and of the interrogatories and cross-interrogatories and of any other document about which the witness is to be examined, should in all cases be furnished by the party at whose instance the letter of Request is issued in the language of the country in which the commission is to be executed and shall be transmitted with the Letter of Request. In cases where both parties are to be represented at the examination, the letter of Request might further ask that the agents of the parties be permitted to ask such further questions in examination and cross-examination as they may be advised.

 

86. The same. As the foreign authorities responsible for executing Letters of Request, etc., are entitled to the payment of any out-pocket expenses actually incurred in obtaining the evidence for Indian Courts, the Courts should therefore satisfy themselves before sending any document for execution that in case of such a demand being made the money will be forthcoming.

 

Section L. ---- Hearing of Suits, Adjournments, Examination of witnesses, etc.

 

87. Notice of day of trial and adjournment. Notice of day of trial, reasonably sufficient to enable the parties to attend with their witnesses, should be given beforehand. It is the business of the parties respectively to take all the reasonable steps to have all their witnesses present in Court on the day fixed. The Court should, on application and deposit of process-fees within proper time, issue the requisite summons as soon as possible so as to secure their attendance on the day fixed for hearing. The day fixed for the trial should not be changed except for sufficient cause, and in dealing with applications for adjournment the interests of both parties ought to be considered when the day of trial is changed otherwise than with the consent of all parties, reasonable notice of the change should be given as in the first instance. The Court should in every instance, at the time of granting adjournment, record its reasons for so doing, and make an order as to the cost thereof.

Revenue judicial cases especially in which parties have engaged counsel should not, as far as possible, be taken up on tour without giving notice sufficiently in advance to the parties of the place of hearing. The record should show that due notice of date and place has been given and served upon the parties.

 

88. Adjournments on payments of costs. It has been observed that a number of Courts grant an adjournment merely because the party at fault is prepared to pay the cost of adjournment. Subordinate Court should bear in mind that the offer of payment of the costs of adjournment is not in itself a sufficient ground for adjournment. The provision of Order XVII, Rule 3, also deserves notice in this connection. If a party to suit to whom time has been granted for a specific purpose as contemplated by Order XVII, Rule 3, Civil Procedure Code, fails to perform the act or acts for which time was granted without any good cause the rule gives the Court discretion to proceed to decide the suit ‘forthwith’ i.e., without granting any adjournment. In such cases a further adjournment should not ordinarily be granted, merely because offer is made for payment of costs. In some Courts, it is apparently assumed that if such an adjournment is not granted the case will be remanded by an Appellate Court. There are, however, no valid grounds for this assumption. If the record makes it clear that a further adjournment has been refused because of the negligence of the party concerned, such refusal would not in itself justify an Appellate Court in remanding the case. An adjournment granted otherwise than on full and sufficient grounds is favour and in suit favour can be shown to one party only at the expenses of the other.

No hard and fast rule can, however, be laid down. Each case must be judged on its own merits.

 

89. Witnesses should be examined on the day on which they attend. Revenue Courts should endeavour to hear the evidence on the date fixed; much expense and inconvenience being caused by postponements ordered on insufficient grounds, before the witnesses in attendance have been heard. Under Order XVII, Rule 1, of the Code, when the hearing of the evidence has once begun the hearing of the suit should be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing to be necessary to be recorded by the Judge with his own hand.

 

90. Court to note when each party has used his case. It is frequently urged in appeals that a party has had a witness in attendance whom the lower Court has omitted to examine. It is often impossible to ascertain from the record whether this is the case, and it would be equally impossible to ascertain it by a remand. It is, therefore, directed that, as regards both plaintiff and defendant, when the examination of the last witness produced in Court by either party is closed, such party shall be distinctly asked if he has any more witnesses to produce; that the question, and reply shall be noted on the record, and that if more witnesses are named, the Court shall either examine them or record its reasons for not doing so. If either party states that he desires additional witnesses to be summoned, the Court should record the fact of the application and pass an order thereupon.

 

91. Examination of witnesses how to be conducted. In the examination of witnesses, question ought not to be put in a leading form, nor in such a form as to induce a witness, other than an expert, to state a conclusion of his reasoning, an impression of fact, or a matter of belief, in the place of describing what he actually observed. The questions should be simple, should be put one by one, and should be framed so as to elicit from the witness, as nearly as may be in chronological order, all the material facts to which he can speak of his own personal knowledge. A general request to a witness to tell what he knows or to state the facts of the case should as a rule not be allowed because it gives an opening for a prepared story. Where the party calling witnesses is not aided by a counsel, and is unable himself to examine properly his witnesses he may be asked to suggest questions and examination may be conducted by the Court.

 

92. Cross-examination. When the examination-in-chief is concluded, the opposite side should be allowed to cross-examine the witness, or, if unable to do so, to suggest questions to be put by the Court. In cross-examination leading questions are permissible.

 

93. Re-examination. -Then should follow, if necessary, re-examination for the purpose of enabling the witness to explain answers which he may have imperfectly given on cross-examination and to add such further facts as may be admissible for the purpose.

 

94. Questions by the Court. When the examination, cross-examination and re-examination are conducted by the parties or by their pleaders, the presiding officer ought not, as a general rule, to interfere except when necessary, e.g., for the purpose of causing questions to be put in a clear and proper shape, of checking improper questions, and of making a witness give precise answers. At the end, however, if these have been reasonably well conducted, he ought to know fairly well the exact position of the witness with regard to the material facts of the case, and he should then put any questions to the witness that he thinks necessary. The examination, cross-examination, re-examination and examination by Court (if any) should be indicated by marginal notes on the record.

 

 

Section M. --- Judgments and Decrees

 

95. General instructions as to the judgment. When the trial in Court is over the Revenue officer should proceed at once, or as soon as possible, to the consideration of his judgment. It is essentially necessary that he should do so while the demeanour of the witnesses and their individual characteristics are fresh in his memory. He should bear in mind that his first duty is to arrive at a conscientious conclusion as to the true state of those facts of the case about which the parties are not agreed. The oral and documentary evidence adduced upon each issue should be carefully reviewed and considered in the judgment. The judgment should contain a concise statement of the pleadings, the points for determination, the decision thereon, and the reasons for such decision. The judgment should be dated and signed in open Court at the time of pronouncing it, and should be pronounced in open Court at a time fixed for the purpose. When a judgment is not written by the presiding officer with his hand, every page of such judgment should be signed by him. It should contain the direction of the Courts as to costs.

 

96. Evidence and final order to be recorded legibly. Judgments (when not typewritten) should always be written in clear and legible manner. If they are not so written, such a copy should be made and placed with the record.

When a revenue officer has occasion to decide any case in accordance with any rules or orders of Government or of the Financial Commissioners, or under any section of an Act of the Legislature, he should make a reference in his order to such rules, orders or Acts and in recording his order he should as far as possible use the actual wording of such rules, orders of Acts.

 

97. Judgments must be written and announced within 14 dates from the date on which arguments and heard. Instances have occurred of Judgments not being written until a considerable time after final arguments in case have been heard. The practice is open to grave objection, and in any case in which judgment is not written and pronounced within 14 days from the date on which arguments were heard, a written explanation of the delay must be furnished by the Subordinate Court concerned to the Deputy Commissioner. This is not meant to encourage a practice of reserving judgments; on the contrary, judgments should ordinarily be written as soon as arguments have been heard. It is only in the exceptional case where the Court has to consider many rulings and cannot conveniently give judgment at once, that there is any justification for judgment being reserved.

 

98. Decree. The decree should be framed by the Revenue Officer with the most careful attention to its object. It must agree with the judgment and be not only complete in itself but also precise and definite in its terms. It should specify clearly and distinctly the nature and extent of the relief granted, and what each party affected by it, is ordered to do or to forebear from doing. Every declaration of right made by it must be concise, yet accurate every injunction, simple and plain.

 

99. Standard forms of decree prescribed in certain cases. Standard forms of decree for use in the following classes of Revenue Court cases have been prescribed by the Financial Commissioner: -

                                 I.      --Claims for right of occupancy.

                              II.      --Claims to contest notice of ejectment.

                            III.      – Claims for enhancement of rent.

                           IV.      -Claims to declare void transfer of right of occupancy.

 

100. Powers of the Court to be disclosed. Every judicial officer hearing or deciding a suit, proceeding or appeal, shall ensure that the record and the final orders of judgment and the decree, shall disclose the powers which such officer exercised in hearing or deciding such suit, proceeding or appeal.

 

101. Preparation of decrees. The following directions relate to the preparation of decrees: -

           (i) In decrees for possession of agricultural land it should be stated whether possession is to be given at once, or after the removal of any crop that may be standing on the land at the time when the decree is executed, or on or after any specified date;

          (ii) in Appellate Courts the language used in filling in the decretal order, shall conform the action recognized by law, and shall direct that the decree of the lower Court be either ‘affirmed’, ‘varied’, ‘set aside’, or ‘reserved’. In each case in which a decree is affirmed the terms thereof shall be recited, so as to make the Appellate decretal order complete in itself. In varying a decree the relief granted in lieu of that originally granted shall be fully and accurately set out. Where a decree is reversed on appeal, the consequential relief granted to the successful party shall similarly be stated. Every decretal order shall be so worded as to be capable of execution without reference to any other document, and so as to obviate misunderstanding on the part of the persons concerned.

          (iii) When any parties added or substituted in the course of the suit, care should be taken to see that their names are properly shown in the decree sheet.

 

102. Decrees based on compromise. When a decree is to be passed on the basis of a compromise, the Court should order the terms of the compromise to be recorded in accordance with the provisions of Order XXIII, Rule 3, Civil Procedure Code, and then pass a decree in accordance with the terms. When, however, the compromise goes beyond the subject-matter of the suit, a decree can be passed only in so far it relates to the suit. As regards the proper form of decree in the latter class of cases, the directions of their Lordships of the privy Council in ‘Hemant Kumari Debi versus Midnapur Zamindari Company’ (46 I.A. 240 and 244, and I.L.R.18 Cal. 485) should be followed. When any of the parties to the case are minors, care should be taken to see whether the compromise is to their benefit and record a finding to that effect if the compromise is sanctioned and made the basis of a decree.

 

Section N. ---- Appeals

 

103. General. The instructions contained in Chapters 14-B, and 14-D of Volume 1 of High Court Rules and Orders should be observed mutates mutandis by all Revenue Appellate Court.

The provisions of Order XLI, Rule 11, of the Code of Civil Procedure, which enables the Appellate Court to dispose of the registered appeal by confirming the decision of the lower Court on a fixed date in the presence of the Appellate, without sending for the records and without summoning the respondents, is very important one, and Appellate Courts should be careful to see that its object is not defeated and respondents put to all cases. It should be observed, that when a decision is confirmed under Order XLI, Rule 11, of the Code, the confirmation must be notified to the lower Court. Such confirmation falling without the definition of ‘decree’ in section 2 of the Code, and being as such, appealable, a formal decree should be framed in every case disposed of under the provisions of Order XLI, Rule 11.

 

104. Copy of decree to be filed. Appellants should always file, with the petition of appeal and the copy of the judgment appealed against, a copy of the decree appealed against.

 

105. Vernacular copies of English orders not required. It is not necessary to file copies of orders in vernacular as well as in English. Where the English order is the original, it will suffice to file a copy of the order in English, on duly stamped paper without its counterpart in vernacular.

 

106. Terms ‘Appellant and ‘Respondent’ not be used. As confusion frequently arises from the use of words ‘Appellant’ and ‘Respondent’ in two successive Appellate Courts, especially when the parties appealing belong to different sides, Appellate Courts should not use these terms, but always ‘plaintiff’ and ‘Defendant’ throughout their proceedings. If the later terms are used, no mistake can possibly arise.

 

107. Appellate files transmitted in vernacular. In cases of appeal to the Financial Commissioner files should not be transmitted under English Docket or covering letter; nor will they be so returned except in cases of importance or general interest.

 

108. The following rules are made by the Financial Commissioner in regard to the transmission of Appellate Court’s orders to lower Courts: -

                                  i.      The Commissioner will send copies of all his judgments on appeal to the Collector, who will transmit the copies to the original Court for information and return direct to the Record-keeper, to whom the original records will be sent at once.

                                ii.      The collector will similarly send copies of all his judgments on appeal to the original Court for information and return direct to the Record-keeper, to whom the original records will be sent at once.

                               iii.      Translations of judgments will be sent if any non-English knowing officers ask for them. If they are sent, they will be attached to the English copies, and the same procedure will be followed.

 

Section O --- Abatement of Proceedings

 

109. Death, Marriage or Insolvency of parties. (a) In Revenue Officers, cases the death of one of one of the parties to a revenue proceeding, or, in a proceeding to which a female is a party, her marriage does not cause the proceedings to abate. And the Revenue Officer before whom the proceeding is held shall have power to make the successor-in-interest of the deceased person or of the married female a party thereto.

         (b) In Revenue Court cases, procedure to be followed in the event of death, marriage, or insolvency of parties is laid down in Order XXII, Civil Procedure Code. Proper steps must be taken to bring the legal representatives of the persons concerned (the Receiver in the case of a person who is declared an insolvent) on the record within the period on limitation. Otherwise, the suit is liable to abate wholly or partly in certain cases. The abatement takes place automatically and a formal order of abatement, though not essential, should be usually recorded. The abatement can be set aside on an application by the aggrieved party, if sufficient cause is shown (Order XXII, Rule 9).

            There is not abatement if a party dies after the conclusion of the case but before judgment. In such cases judgment may be pronounced and will take effect as thought had been pronounced while the party was alive. 

In certain cases, the abatement of a suit as against one defendant results in the dismissal of the whole suit. Reference may be made in this connection to I.L.R. 10 Lahore 7 (F.B.).

 

Section P. --- Miscellaneous

 

110. Rent Suits. Paragraph 804 of Land Administration Manual and Section 70(1) of the Punjab Tenancy Act, should be strictly observed; and in case no application for grant of compensation is put in, a note should be made by the Court that the tenant was so directed.

In suits for enhancement of rent the Revenue Court should invariably state in tabular form in its judgment the area involved and the present land revenue and cesses, together with the rent or malikana as the case may be. If there has been a recent re-assessment of land revenue, the previous land revenue, cesses and malikana (if any) should be stated also.

 

111. Notice of sale of right of occupancy. In connection with the sale of a right of occupancy in execution of a decree or order of Court under Section 55(2) of the Punjab Tenancy Act, 1887, the following form of notice for issue to the landlord concerned is prescribed: -

_______________________District.

NOTICE OF SALE OF RIGHT OF OCCUPANCY in execution of a decree or order of Court issued to the landlord pursuant to the provisions of sub-section (2) of section 55 of the Punjab Tenancy Act, 1887, by the Court of ___________________held at __________________in the district aforesaid.

Landlord on whom this notice is to be served.

 

Tenant whose right of occupancy is to be sold.

 

Tenancy to which this notice relates.

(Give for each field included in the tenancy, its number and its area; also the total area of the tenancy and the estate and Tehsil in which situate).

A.B. (with father’s name, caste and residence)

 

C.D. (with father’s name, caste and residence).

 

Notice is hereby given to A.B., the landlord of the tenancy above described, that the right of occupancy of C.D., the tenant, will be sold by this Court at ________ o’clock of the ___________ day of ____________19______________in execution of the decree described below, and the landlord is hereby informed that if at any time before the close of the day on which the sale takes place he pays to the Court or to the Officer conducting the sale sum equal to one-fourth of the highest bid made at the sale he shall be declared to be the purchaser of the tenant’s right of occupancy at the amount of that bid.

 

Dated at the Court of          (Seal and signature of the Court)

This day of _____ 19

(Particular of decree in execution of which this sale is ordered)

 

 

112. Tenures to be accurately described. The attention of Revenue Officers is invited to the necessity of describing accurately the tenures dealt with in their administrative and judicial proceedings. It is very common for an undivided share in a holding to be described as if it were a stated area of a land held separately. Care should be taken to eliminate misdescriptions of this nature from revenue proceedings. If a person holds an undivided share in land, his interest should always be so described; and the use of the words which imply that he holds separately a definite area should be carefully avoided. Plaints, applications and reports which contain errors of this nature should be returned for correction.

 

113. Surveys and boundaries. When time has been granted by the Civil Court to a party in suit for the purpose of making an application under section 101 of the Land Revenue Act, 1887, and such application is made, the Revenue Officer should endeavour to dispose of the application as promptly as the circumstances of the case will allow.

 

114. References to the High Court under Section 100. Direct references to the High Court of the kind provided for in Section 100 of the Punjab Tenancy Act, 1887, may be made by Commissioners and Collectors, and the rules published in chapter 15 of the Rules and Orders of the High Court, Volume 1, should, so far as they are applicable, be observed by Commissioners and Collectors in making these references and all Revenue Courts should similarly observe these rules in making these references under Section 99 ibid.

 

115. Court hours, holidays and cause lists. The attention of Revenue Officers is invited to the instructions laid down in Chapter 1-A of the High Court Rules and Orders, Volume I, in regard to the means to be adopted of informing litigants of the hours of business of Court holidays and cause lists, with the object of reducing the number of dismissals of cases in default of appearance of plaintiffs or appellants. Revenue Courts and Officers should conform to the practice thus laid down for Civil Courts.

 

116. Petition Paper. With regard to the paper employed in formal petitions to Revenue Courts and Offices the practice of Civil Courts should be followed. The paper required should be obtained by Collectors from the Controller of Printing and Stationery, Punjab, quarterly on regular indents. The paper is to be sold to the public at ten Paise per sheet, and the rules for the supply, custody and sale of non-postal stamps given in the Punjab Stamp Manual, apply mutatis mutandis to the water-marked plain paper.

 

117. Preparation of Records, size and quality of paper. Instructions for the preparation of Revenue Judicial Records, and the size and quality of paper to be used in all Revenue Courts and Offices are reproduced below: -

(1)                           Petition paper to be used for all copies, petitions and applications. The instructions conveyed in Chapter 16, Part A, Rule 1 of the Rules and Orders of the High Court, Volume IV, regarding the use of the standard pattern water-marked plain paper supplied by the Controller of Printing and Stationery, Punjab, should be strictly followed in Revenue Court and Offices. All copies of Revenue documents and all applications and petitions should be written on this paper, and copyists and petition-writers should be required to comply with this direction. The paper is to be used and kept flat at its full size (131/2”x81/2).

(2)                           Official foolscap paper. The official foolscap half sheet, which is very nearly the same size as the petition paper alluded to in the last paragraph should be used for all English portions of the record, and should also be kept flat.

(3)                            Unbleached double foolscap paper of 24 1bs. should be used for the autograph records of officers who do not write their records in English. For ordinary purposes paper of 20 1bs. should be used. The varieties of paper are obtainable from the Controller of Printing and Stationery, Punjab, along with other articles of Stationery. Blank books can also be obtained form that office and should always be used for registers.

(4)                           ‘B’ quality paper to be used for vernacular portion of the record. The remainder of the vernacular portion of the record should be written on ‘B’ quality paper as supplied by the Jail Department folded to quarter sheet.

(5)                           Instructions to prevent waste. In order to prevent waste and injury and improve the vernacular records, attention should be paid to the following matters: -

a)      In all cases, depositions of witnesses should be written continuously instead of on separate sheets, a clear space of 3 or 4 inches being left between the end of one and the beginning of the next deposition (if on the same sheet).

b)      The practice of writing orders and other matters across the top and along the sides of a page should be avoided.

c)      In all vernacular proceedings an eighth margin should be left on each side of the paper so that writing should not be obliterated by fraying at the edges.

d)      Files in use of Revenue Offices should be placed between stiff wooden or cardboard protectors, of the size of the standard file, when tied together, so that the strain of the cloth or other covering or of the string of tape does not fall on the papers within. It is not intended that the file of each case should be placed between stiff covers, all that is necessary is to tie each file with broad tape or nawar instead of string, but each bundle of files should, until packed away in the Record Room, be kept between stiff covers to prevent fraying, folding, etc.

e)      The record and papers should be placed at their full size in envelopes of the size of the file.

f)        Exhibits should be folded to as nearly as possible the same size and placed in envelopes of the size of the file.

 

 

118. Chronological abstract of order to be attached to certain files. All revenue Courts are required to enter on a separate sheet or sheets in the annexed form, a short abstract of every order passed in the course of the proceedings in a case. The entries are to be made consecutively according to the dates of the orders, and the sheet is to be the first paper entered in the index of papers. The entries so made are to be in addition to the usual record of the orders in their proper places in the file, and are intended to facilitate the tracing by Appellate Courts of the course of procedure in a case.

 

Form of Chronological Abstract of Orders

In the Court of …………………….. at ………………………

            Case No.                     of

Date of order

                      Abstract of Order

 

 


            Generally, this abstract is not necessary in Revenue Officers’ and miscellaneous cases, but partition, boundary and muafi cases are exceptions to this general rule.

 

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