 Good afternoon one and all and it's one of the rare occasions when we have webinars on a topic back to back so that we can have a deeper look into that and the fact that yesterday's webinar touched more than 10,000 views in a particular day. It creates history on the platform of Beyond Law CLC. We have not been able to touch 10,000 views in a on the Facebook page and so we are so happy that just as N Kumar when he gave the insights on the topic of examination of witnesses civil trial and the arbitration act and as yesterday as yesterday just as N Kumar a former judge of Karnataka High Court and the president of Karnataka Judicial Academy had taken us what according to him was a bird eye view but we felt that we were largely enriched by the way he took to the entire gap of the first part and today when we take examination of witnesses of civil trial and the arbitration act as usual he would first take us the manner or like yesterday he appraised us that as to how the documents etc would be read into evidence how they are marked and how they are exhibited what is the manner and what is the subtle differences between the under the civil trials as well as the arbitration act without taking much time since people know about just N Kumar who had connected yesterday on the Facebook as on the platform and even otherwise he's such a popular person that everyone knows about him I would request just as N Kumar of the yesterday from the yesterday's webinar on the topic so kindly unmute yourself yes right good afternoon yesterday we saw how oral evidence is to be used today let us see how documentary evidence is to be used in a civil trial as all of you know in the amendment to the civil procedure court all the documents on which the plaintiff relies on are to be filed along with the plight all the documents on which the defendant relies on are to be filed along with the written state they are permitted to file copies along with the previous but once the previous are over issues order 13 of the civil procedure court expects the parties to produce all the original documents before the court and if the document remains that has to be filed along with the academic which is filed by way of examination in chief by that stage all evidence is before the court the doctor no document is permitted to be produced unless a special case is made out for production therefore once the trial has begun all the documents are on record now the party has filed an affidavit by way of examining chief and in examination chief expected to say is what he would have said by way of oral evidence now as for the documents are concerned what is the mode in which you produce documents and you get it marked is the documents are received by the court now make it clear here when we talk about examination in chief and oral evidence and documentary evidence oral evidence as I pointed out to you yesterday the directive of what the witness has seen what the witness has heard what the witness has perceived and if it is a specialized professional evidence evidence of experts obviously is oral evidence now there are cases where a particular issue is to be proved not only by oral evidence sometimes it can't be proved by oral evidence it has to be proved by documentary evidence for example if I dispute to the title the property is involved in the amount of oral evidence is not a substitute for documentary evidence it is the documents of title which are to be if a suit for specific performance based on agreement of say it is the agreement of say which is to be produced likewise documentary evidence is produced but in the affidavit what one should not do is this say for example a suit for specific performance based on an agreement written agreement of sale what the party can say by oral evidence is the defendant has agreed to sell the property to me under an agreement of sale data so and so for a consideration of the so and so but once the agreement is reduced into writing the affidavit should not contain the terms of the contract it is prohibited therefore what they have to produce is the document itself therefore the affidavit should say that agreement of sale is produced and it will be marked as exhibit p1 and then that agreement is to be tender in evidence with the court and use a tick mark you should not go on repeating the content of the affidavit it is not permissible and such a thing should be so therefore when we have to produce documents in support of our case the next question would be the proof of contents of documents section 61 of the evidence act categorically states the contents of the documents may be proved either by primary or second oral evidence has to be direct document evidence should be by producing the primary evidence or by secondary evidence what do you mean by a primary evidence sections 62 define the primary evidence means the document itself produced for the inspection of the court if your case is based on a document the law says to produce that document itself so that the court will look into the document and then comes to the conclusion to which it has to come now if that primary evidence is not available the law provides for what is known as secondary evidence that is secondary evidence means the certified copies under the provisions of the evidence act copies of the original taken out in a mechanical process you know what is also Xerox copies coder parts of the documents and replica of the documents of the original these are all called secondary evidence the document itself the original document itself is the primary evidence if for any reason the original document is not available then the same thing could be proved by producing secondary evidence which is nothing but a replica of the original now this is about production of primary and secondary evidence now coming to the proof of documents by primary evidence section 64 of the evidence act says the document itself must be proved that the document must be proved by primary evidence except in cases here in October mentioned and then section 65 speaks about how and when secondary evidence could be used that is when the original document is in the opposite party he refuses to produce original is lost original is destroyed original is not in the position of the party who want to rely on if you make out a case for reason for not producing the primary evidence the court will permit you to leave secondary evidence there's a lot of confusion about this how do you make out a case a simple way of making out a case is the witness should enter the witness box the party should enter the witness box and he should stay before the court on hold either the primary evidence is not in his position primary evidence in the position of the opposite party he has called upon him by a notice to produce which he has not produced if the original is lost if the original is destroyed it's called laying the foundation laying the foundation for producing the second evidence so with after laying the foundation saying why the document cannot be produced then in law he's permitted to produce what is known as the second evidence and it is acceptable so this is a procedure which is followed in almost all courts proof of the documents as I said the document itself is approved and once the document is before the court the court will be in a position to look into the documents now the question is documents are produced along with the police it is a record it doesn't form part of evidence the party may produce it to court on a second thought he may not rely on the evidence at all therefore he will not tender that document in evidence so production into court is the first stage then through the witness that document is to be tendered in evidence where the document is tendered in evidence then the opposite party will have a right to object to the production that is receipt of the document by the court that is regarded objection regarding marking if there is no objection the document is marked the document is marked means that is a ministerial act it is a ministerial act but before the document is marked the court has to apply consciously it is judicial mind and receive the document and then mark and merely because the document is marked it does not mean the document is approved after the document is marked if the document is in dispute then the party who is marking the document has to leave evidence to prove the contents of the document this is the procedure production that is the document in evidence marking of the document and then proof of it is a part and parcel of the civil procedure court order 30 rule 3 categorically states rejection of irrelevant and inadmissible documents the court may at any stage of the suit may reject any document which it considers irrelevant or otherwise inadmissible recording the grounds of such rejection therefore the court has the power to reject the document which are tendered in evidence if the document is not rejected in that fashion what is that the court is expected to do when do you say the document is issued in evidence rule 4 provides there shall be endorsed on every document which has been admitted in evidence in the suit following particulars namely the number right to the suit the name of the person produces the document the date on which it was produced and a statement of its having been so admitted and the endorsement should be signed an initial with the judge normally there will be a stamp which contains all these particulars it is a particular but it is a judge who consciously applies his judicial mind and affixes signature and then only it can be said the document is admitted in evidence so therefore this marking of a document and admitting the document in evidence is a very crucial aspect in a civil trial only if the document is admitted in evidence then the court can look into the document otherwise it cannot the civil procedure court also says when a document is produced if the other side raises an objection regarding marking of the document on the ground that it is insufficiently stamped the court has to apply its mind then and there and find out whether the document is sufficiently stamped or not if the document is not sufficiently stamped on a 13 rule 8 of the civil procedure court provides that the court has to impound the document court has to impound the document now as far as importing of documents are concerned they are exhaustively dealt with under the stamp act we will come to that little later so therefore one should be very clear merely by producing the document into court it has not become evidence you know they become a part of the record only when you want to rely on the document the document is to be tended in evidence it should be admitted in evidence in proof of admission it is marked in evidence and thereafter the document in this court the party has to abuse evidence in proof of the document that's where the again the world evidence in respect of documentary evidence comes in now that is where the witnesses play a big role even in proof of a document though the document itself is produced if the document is destroyed that document is approved by oral evidence how do you prove oral evidence document and who are the type of witnesses who are normally examined in civil trial now the first type of witnesses who are examined in the case is the party themselves we saw yesterday parties have to step into the witness box first and give evidence and through them the documents are marked even though the document is marked he may not be the competent witness to prove the document therefore to prove the document the parties may examine witnesses in the witnesses we have two types of witnesses private witnesses and official witnesses it's whereas private witnesses who speak about the documents are concerned are persons who are present at the time of execution of the document persons who have affixed the signature as witnesses of the document persons in fact who has written the document author of the document so they're all persons who are examined when the document is disputed to prove the case of the plaintiff if the person was present at the time of document he will step into the witness box and say I saw with my eyes the document was written in my presence after the document was written it was read over after it was read over the executant signed it witnesses signed it there's another mode of proving the document if the document is witnesses those witnesses are examined who will also come before the court and say I was present at the time of writing of the document so once again with sections so once I wrote the document then the executant signed it and then we have signed it that is oral evidence in proof of document evidence here one distinction has to be noted every document doesn't require attestation but there are documents which are compulsorily attestable what are those number one will is a document which requires compulsory attestation mortgage deed is a document which requires compulsory attestation gift deed is a document which requires attestation now if a document requires attestation and if the document is distributed section 68 of the evidence acts says you must examine one attesting witness at least who is alive in proof of the due execution of that document what do you mean by attested it is defined in the transfer of property act and also as hindu succession act indian succession act with reference to wins now when you need evidence regarding attestation it is not that the person enters the witness box and says I saw them executing the document attestation has a particular connotation in the eye of law what is that only when you know that then you can lead evidence in support of that attestation and attesting witness what that he should speak is very important attestation means the document is written executing fully being conscious and aware of the contents signs the document pro he is the executant with the will he's a testator if it's a gift he's a donor if he's a mortgage he's a mortgage off he affects the signals when they say this requires attestation the attesting witness should say if he was present at the time of execution he should say I saw the executant sign the document the definition of attestation shows executant may sign or he may put a mark or if he is not capable of putting a marker a sign he may authorize somebody to sign on his behalf therefore that is execution and the attesting witness should identify the signature it is not the law that the attesting witness should be present when the executant sign the document if he's present well and good if he's not present attestation means the executant should tell the attesting witness that it is his signature it is his mark he has got somebody signed it after the executant tells the attesting witness then in proof of execution he signs the document though the presence of the attesting witness is not necessary when the document is executed the presence of the executant is a must when the attesting witness attests the document attestation means two witnesses should attest the document it is not the law that both the witnesses attesting witness should be present at that time but both should have acknowledgement from the executant that it is his signature if he was not present at the time of execution and if he was present at the execution he can say in my presence it is done so when you are filing an affidavit by way of examination in G you must bear in mind the requirements of attestation he's barely coming to the witness box and saying I have cited is not proof of attestation and if such evidence is given in the end of the day of appraisal evidence the court may say even though an attesting witness is executed attestation is not proved insofar as views are concerned section 68 is very clear there is nothing like a declaration by the court that the will is proved by concern but if all an attesting witness one attesting witness should be compulsorily examined to prove the attestation of a bill otherwise the will is not so when you are preparing an affidavit though you have produced a document if the document is in this book that disputed document execution and attestation is to be proved by water evidence so knowing clearly the law on the point what are the requirements which will constitute due execution due attestation that evidence should be set out in the affidavit file in support of the examination machine otherwise though the document is there though the attesting witness is examined the evidence will be of no consequence so therefore this attesting witness they form a class by themselves if they have to be examined these aspects have to be kept in mind and their evidence should be led in the fashion then we have experts evidence if the case involves some technical aspects engineering aspects medical aspects we examine experts in the field they are not ordinary witnesses they are coming and because of their learning they are assisting the court and they are giving evidence of course they are cross-examined so they are called as experts then there is another type of experts that is handwriting is disputed LTM is disputed then it is sent for scientific investigation a commission is appointed expert in the field is appointed he gives evidence then called as commissioners report if the parties agreed to the commission's report automatically it becomes a part of the recording it becomes evidence but if any of the party has a grievance he does not accept them then what he is expected to do is he should call upon that party to enter the witness box and he has a right to cross-examine there is an examination in chief of an expert because his report is the examine chief any person who is agreed by or who doesn't agree what he has said he can enter as the witness to enter the witness box and he can be examined exhaustively that about though it is a court appointment the commissioner is an expert in the field the law is well settled the expert's evidence is not conclusive the court for a good reason may not act on that but in normal circumstances as the court doesn't have the expertise it gives you way to the evidence of these experts and they are called as experts and also the persons who are appointed as commissioners who come and give evidence then we have another type of evidence we summon government officials who are in possession of government documents to produce document and to give evidence they are not strictly speaking the witnesses of anybody they are all government officials in discharge of their functions they are for performance in the next in the course of the performance of their duties certain documents are coming to existence and the other side discursive and therefore it is open to the parties to summon them to produce those government documents and also give evidence in support of the case they are called as official witnesses and when a document is in the hand written or when it is typed and it is distributed normally the person who signed the document who has written the document who has typed on the document whom we call it as crime he is also examined to prove the authenticity of the document therefore in witnesses party himself is the witness attesting witnesses to a document or witnesses in cases where document is compulsorily attestable those attesting witnesses are a necessary witnesses to be examined in the case technical matters scientific matters in medical jurisprudence you examine experts in the field they are called experts and when the court appoints commissioners for investigation and submitting a report they are also in a way experts they come and give evidence and when officials are summoned to produce documents and give it as they are called as official witnesses and when the document is in writing type the persons who prepare the document they are also summoned to examine witnesses like this among the witnesses we have several categories so the question is is that evidence relevant to prove the case is that evidence relevant to prove the document which is in this group and it is an opposite of the evidence the court will come to the conclusion one way or the other earlier if the party is unable to get a witness the law provides for taking our summons and he will he will come and then he is examined now amendment has been affected to effect if a party is willing to go and give evidence even without even without summons he can be summoned but unfortunately when a person comes without the summons much of the time is wasted it is cross examination whether it is summons why did you come a two sisters you have come he has one over you see all this doesn't know now the law says if you want to examine a witness if that witness is willing to come get him if the witness is not willing to come except to the process of court take out summons to the court and examine him so either the it doesn't make any difference ultimately what he has said whether he has stood the test of cross examination is the criteria and not whether he has come on his own or whether he has come through the court process so therefore witnesses are of several times and each one has a particular road to play in a civil court civil trial and suddenly it is the ultimately the court which will weigh their evidence and come to the conclusion one way or another whether that case is true or not true now this is the examination of witnesses to prove the documents now i said when the document is thought to be produced the opposite party has a right to object now earlier the law was whenever an objection is taken to the marketing of the document admissibility of the document the court had to decide it then and then itself and you should pass a considered order because the orders were passed that was challenged in the higher court under the court granted state the entire trial came to a standstill that was the reason for delay in this photo of cases this was the parliament is concerned they amended extensively section 115 of the civil procedure court making the scope of revision of these orders to the minimum but the more important thing is supreme court in the year 2000 taking note of the condition in which these things happened in our country has passed the law i would say it is a judgment rendered by the court of the article 141 which is the law of the land which is holding the feeling what they said was where an admissible in a document is distributed the document is to be marked subject to objection and an objection needs to be heard along with the case on various they don't need to pass any order market subject to objection personal is objecting you know always find out in the course of argument that document should be laid upon therefore this abstraction to the course of trial was taken but it was the two exceptions the two exceptions are one objection regarding stamp duty objection regarding registration they said these two issues are concerned that must be decided then and then itself the reason is is for a stamp duty is concerned then one of the major source of income for the extra card you cannot go on a marking documents and postpone the collection of tax therefore every state act for what should be done when a document which is to be charged the duty is not charged in fact the state acts define what do you mean by chargeable what do you mean by duly stamp what do you mean by instrument so an instrument should be duly stacked that means it is charged up to that document so if a document is not properly stamped what is the procedure to be followed throughout the country the law is the same though each state has a stamp act the provisions in parametry we are with each other now for example take our karnataka stamp act with this with section 33 it deals with what is known as examination and importing of instruments what they say is every person having by law or consent of parties to receive evidence court is an authority which is empowered to receive evidence if such a document is produced before him and is that instrument is chargeable in his opinion with duty and if it is produced or comes in the performance of his function shall if it appears to him the instrument is not duly stamped impound the same impound the same therefore a statutorily duty is cast on a civil court to impound the document which is produced before it as evidence if the document is not duly stamped there is no concession there is no exception whether the opposite party raises objection or not the duty is on the court to look into the document find out whether the document is duly stamped or not and if it is not duly stamped impound the document and the duty is cast upon the court to collect duty and 10 times penalty so it is a stat duty conferred on court now an aspect which requires the state is if a lawyer is not present then the document is standard in evidence opposite law court is not diligent but therefore an insufficiently document stamp document is marked in evidence what would be the effect the effect of such a thing is no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having my law or consent of parties authority to this evidence and shall be acted upon register authenticated by any such person when the document is not duly stamped it is a scrap of paper it has no value it is no evidence at all but somehow the document is marked unintentionally without properly applying its mind then the section says once the document is marked which is insufficiently stamped then objection to this marking cannot be taken up in that proceedings or even in the proceedings like appeal second appeal or revision that is where an instrument has been admitted in evidence such admission shall not be called in question at any stage of the same so or proceeding on the ground and the instrument has not due to this time and this is a law declared by the supreme court also but that doesn't mean that the court cannot import the document and recover the stamp duty so therefore in a civil trial where document evidence is written upon the advocates on the opposite side should be very careful they should not be absent when the documents are produced in evidence even the court should be careful otherwise a valuable right of a defendant may be seriously hampered if documents which are insufficiently stamped or admitted evidence thereby valuable rights of the defendants are taken away now once the document is insufficiently stamped it is tender evidence and the court impounds the document the law provides for payment of the deficient stamp duty and 10 times the penalty if the party tending the evidence produces the stamp duty and also produces a penalty then a document which is initially inadmissible becomes inadmissible and once the stamp duty is paid penalty is paid the court is expected to look into the document and decide the rights of the parties so therefore there is no bar from the court to look into the same document similarly objection regarding registration that is contained in section 49 of the registration act no document required by section 17 of the registration act will be if it is not registered will effectively immobile property comprised there or received as evidence of any transaction affecting such property or conferencing power unless it has been registered so there's an objection again to be taken at the time of marking of the document the only difference between the stamp objection and registration objection is even if a document which compulsory requires to be registered is admitted in evidence though not registered because of the operation of law or it makes no difference unless the document is registered there is no transfer of interest in the property that document has no value that cannot be looked into but the proviso to the provision says but the document can be looked into for what is known as collateral purposes this is the subject matter of lot of judgments in civil transfer what do you mean by a collateral purpose collateral purpose means if the purpose for which you are looking into the document if the law does not require it to be registered then you can look into it take for example a partition under Indian law a partition can be wore it need not be in writing however a partition is reduced into writing but not really stand not register then objected to objected to the ground that it is not registered even the document can be marked but the terms of the document cannot be gone into the collateral purpose which it can be looked into is as law does not require a partition should be in writing it may be a proof of partition in the family but what property went to which chair cannot be looked into under the dot so therefore the difference between the stamp act and the registration act is under the stamp act the document cannot be looked into unless duty and penalty is paid is over as registration is cancelled even if an unregistered document is registered no interest passes but it can be looked into for collateral purposes so this is the difference which one should keep in mind when we are talking about documents production of document and proof of documents therefore mere mark of a document is not proof of document you have to prove the document if it is disputed the examining witnesses who are well acquainted with the facts of the case and as I said the purpose for which the person is examined now the question is this is what happens in the civil court what is the procedure in so far as arbitration cases are concerned because section 19 of the arbitration acts says the arbitral tribunal shall not be bound by the court of civil procedure or the Indian evidence act what are the effects is there any different procedure provided under the arbitration act for production of documents for examination of witnesses is the question now I would say please this is the language of the arbitration act it says arbitral tribunal shall not be bound that's all if the arbitral tribunal want to follow the civil procedure court there is no problem if the arbitral tribunal want to ignore it nobody can find fault with this having said that this is very important the power of the arbitral tribunal under subsection 3 that is first the party is given the right to choose the procedure to be followed in trial another arbitration act section 19 2 if the parties do not agree to a particular procedure the arbitral tribunal can decide the procedure what is the arbitral tribunal decide the procedure it may follow the civil procedure court or if they decide to follow his own procedure subsection 4 of section 19 makes it very clear whatever may be the procedure the tribunal is going to follow during trial the power of the arbitral tribunal under subsection 3 includes the power to determine the admissibility relevancy or materiality and weight of any evidence as I could see I do not find any law which is better than the evidence act about which we are all very familiar therefore arbitral tribunals do rely on substantially the provisions of the evidence act even in a trial before an arbitral tribunal if a document which is insufficiently stamped is sought to be produced under the opposite party objects the tribunal is bound to apply its mind and find out whether the document is newly stamped or not because stamp access any authority court public authority any authority which includes an arbitration court is bound to apply its mind and find out whether the document is sufficiently stamped or not and if it is not stamped follow the procedure prescribed under the stamp bag similarly if a document requires registration and it is not registered certainly the substance of the provisions of the registration act are reflected and the arbitral tribunal is bound to look into these aspects so therefore I do not find any marked difference between the production of documents decision regarding admissibility marking on rejection of documents both in the arbitral cases and in the civil court the procedure followed is one and the same now as well the witnesses are concerned there is a some difference as I said in the civil court exam in chief is by way of a affidavit and cross examination is done in the case of appealable cases the answer given by the witness is taken as it is in the case of non-appealable cases the court can summarize the evidence and record it in arbitration cases what exactly happens is the parties agree the evidence in chief is filed by an affidavit there's no difference in so far as cross examination is concerned they say it is an international case question is taken and answer is taken question is taken and answer is taken unless the party say let us record the evidence in the way it is recorded in court otherwise normally in arbitration proceedings they advocate push a question in cross examination question is taken the witness gives an answer that is taken that is the mode in which evidence is recorded in arbitration cases yet another factor which makes a difference between arbitral tribunal of the civil court in the civil court the judge who is presiding over that particular court is not an expert in any field except the law if any questions involving technical knowledge engineering medicine is involved normally a commission is appointed his report is sought for and then the court looks into the report and decides the case but in the case of arbitration if any technical aspects are involved engineering is involved medicine is involved accountancy is involved in the constitution of the arbitral tribunal itself you can have an expert normally in building contracts there will be two arbiters appointed by the parties who are engineers or architects or experts in the field and the presiding arbitrator would be a judge so that the presiding arbitrator takes care of little matters the two experts in the field looks into the technical aspects or scientific aspects and all of them should be able to produce a reasonably good award that is lacking in the civil court civil courts have to depend upon experts by appointing them as commissioners act on the report after you've opened the parties to cross examine them in tribunal the difference is you can express themselves on the tribunal they become part of the tribunal and they would be in a better position appreciate these scientific matters technical matters and decide these disputes in a satisfactory manner that's the difference would be a civil court trial and a difference in the arbitration proceedings now after the proof of documents is concerned the law is the same I do not see any difference but that is the most important aspect if a document is approved in a manner known to law even though it need not be too technical in essence the document is to be proved in a manner known to law and without the proof of document they no party can say I have proved my case so therefore though the arbitral tribunal has the freedom to ignore the civil position ignore the provisions of the evidence act in someone's substance they do follow these procedures maybe some technical aspects here and there they may be ignored but otherwise the difference is the same even as far as exams and witnesses are concerned in arbitration cases after which are fine until and again they are subject to cross examination and I told you the way in which the evidence is recorded and ultimately by looking into both world of government evidence the case is decided by the London arbitration there's not ever much difference in that now another aspect which requires careful consideration is why are we constituting commercial course why are we parties now preferring alternative dispute resolution mechanics the one and the only reason given was that is a inordinate delay in disposal of cases in the civil court so then what is the procedure prescribed in the civil court which is different from the arbitration act as well as the commercial course act here I'm sorry to say though steps were taken by the parliament as far back as the year 1976 by amending order 17 of the civil procedure court but no effort is made to give effect to the set provisions I take this opportunity to bring it to the notice of the members of the bar what the law is and then you decide for yourself what actually transpires in court and for no fault of the CPC CPC is blamed for delaying disposal of cases order 17 rule 1 speaks about granting adjournments everybody reads only that provision they're not looking to the other provisions at all the court may sufficient causes shown at any stage of the suit grant time to the parties to any of them and the front end to them adjourn the hearing of the suit for reasons to be recorded in writing the world for reasons to be recorded writing was not there earlier now it is introduced making it obligatory for the court to give reasons why he is adjourning the case but invariably in most of the cases no reasons are given but they say by amendment no such adjournment should be granted more than three times to a party during hearing of the suit so each party is entitled to only three adjournments and what is more important is today the court in every such case where the case is adjourned the court shall say day for the further hearing of the suit and shall make such order as to cause occasion with the adjournment or such higher cost as the court did with there cannot be an adjournment without imposing cost but invariably in court adjournments are granted without cost and then the very purpose of these amendments are frustrated now that is more important is there's a proviso added in 1976 about how a civil trial should go on in a civil court now let us see how the law says civil trials should take place in the civil court then we will compare it with arbitration act then we will compare it with the recent commercial course act and find out which is better which is faster the proviso to order 17 to 1 categorically states when the hearing of the suit has commenced that is issues of frame witness is put in the witness box when the hearing of the suit has commenced it shall be continued from day today it shall be continued from day today until all the witnesses in attendance have been examined all the witnesses in attendance have been examined unless the court finds for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary so what does it mean once the case is ready for trial plaintiff has entered the witness box he should be ready with the witnesses and the evidence should go on day today if the evidence is not over on the day it should be conducted on the next day but for some reason if you are not able to take up the case next day and if it is to be taken up day after next day court has to give reasons why it has been done there is no question of adjourning beyond a week even if you want to adjourn beyond 24 hours there should be an exceptional case and the court should give reasons this is what is expected of a civil court by way of the 76 then did not stop there no adjournment should be granted at the request of a party except where the circumstances are beyond the control of that party only when the circumstances beyond the control of the party adjournment is to be granted otherwise no adjournment and the most important thing is this the fact that the leader of a party is engaged in another court shall not be a ground for adjournment shall not be a ground for adjournment it is in statute book from 1976 of today what's happening in the trial courts each senior lawyer has got half a dozen juniors for what purpose only to go and submit to the court that the senior is engaged in another court and he wants time a procedure which is completely prohibited as well as a court please see the language used the fact that the leader of a party is engaged in another court shall not be a ground for adjournment in spite of this mandate of law even today in courts cases are adjourned on the ground then the senior is end up in another court then where the illness of a leader or is leveled to conduct the case for any reason other than he's being engaged in another court he's put forward as a ground for adjournment the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another leader in time that means the illness if it is settled party is not able to make alternative arrangements then a case for adjournment is spent off but if the party had sufficient time to make alternative adjournment on the ground that the council is not well and for any reason is unable to come to court then that is not a ground for adjournment so a stringent provisions are introduced under order 17 for adjournment to the cases even the illness of a council is not a party the party for a council has other work is that a ground for a party and this room is followed only in breach further they go to the extent of saying where a witness is present in court but a party or a speeder is not present or the party or a speeder though present in court is not ready to examine the cross exam in the witness the court may if it thinks we record the statement of the witness and pass such orders as it thinks with dispensing with the examinee chief or cross-examine the witness as the case may be by the party or a speeder not present or not ready as a foresaid so therefore court has been given power sometimes if so happens witness is present you'll be telling my lawyer will come the party will come court says they will not say don't wait for them put him in the witness box examine him leave him so the whole object was to ensure a speedy track once the evidence is commenced it should end with the judgment in the case there should not be adjournment for months and years it happens to me this is what is contained in the civil procedure code as well as regular course of concern so in 1996 we've got the arbitration act arbitration act did not speak about this now in the 2015 a provision is introduced in the arbitration act virtually copying this provision from the civil procedure code now it says the arbitral tribunal shall as far as possible hold oral hearings for the presentation of evidence or for oral argument on a day-to-day basis and not granted adjournment unless sufficient cause is made out and may impose cause including exemplary cause a party seeking adjournment without any sufficient cause so this provision in the civil procedure code finds now a place in the arbitration act by way of 2015 amendment so day-to-day trial is the order only in exceptional cases adjournment would be given if adjournment is given cost is to be imposed and the trial should go on day-to-day basis now coming to the commercial course side we have another extreme proposition after the readings are complete documents are produced interrogate is a rover documents are admitted and disputed affidavits are fired issues are framed the case is posted for trial the case is posted for a day on which day the court man it's called a court management hearing on that day the court has to put this off the trial on what day evidence affidavits has to be filed on what day cross-examines to be done on what day the argument is to be filed on what day oral argument is to be done and the law clearly says from the date of the case management hearing the conclusion of the trial and argument should be within six months it can't be beyond six months this is what today we have by way of 2015 amendment to the CPC in so far as commercial courts are concerned so virtually the way that trial is to be conducted whether it is a civil court whether it's a commercial court whether it's an arbitration court is one of the same the emphasis is on speedy disposal of cases emphasis on day-to-day trial emphasis is to disregard these adjournments and if adjournments are sought so that the opposite party which inconvenience by the adjournment is duly compensated this is the someone's substance of the procedural law in so far as civil trial is concerned whether it is in court not in commercial courts that's where we stand today so with this background whatever the lawmakers can do according to which they have done it if you are not able to follow this procedure prescribed are we admitting that we are incapable of doing or is it a case of not changing your mental attitude in my view we are capable but we are yet to readjust our priorities and there is difficulty the day the lawyers change their mental attitudes the day judges the attitudes the law which is in India is more than sufficient for speedy disposal of cases and our law is in no way inferior to any other law in any other jurisdiction it is our inability to implement this in letter and spirit which has given an impression as though the Indian legal system do not provide for a speedy disposal of cases by appeal to the members of the legal fraternity is now lawyers are a part of assisting the country in the economic vote India is trying to become a economic superpower now it is well recognized a strong sound judicial system is assigned for non for economic growth and it is here today the judges and the lawyers have a road to play not only the judicial administration but also in the economic growth of the country I will stop here and let me have some questions that those can be as usual the work cannot express the way you have hammered the point in the right perspective this is by Anubha he it is in commercial suit the contract is not stamped at all most clauses and agreements are in email can the petitioner still mark the photocopy of the contract the question is when you are marking the documents which are received by email now it is well understood section 65 v makes it very clear an appointment is sufficient to say this is what I received in email and it becomes admissible evidence but if it requires to be stamped it has to be stamped but for stamping all other documents are received by email could be marked in evidence by just filing an appointment under section 65 b of the evidence okay and this is by Radesha Moria how collateral purpose documents are used in the case of unregistered instruments yes that's what I told you unless the document is registered there is no transfer of interest in the property if transfer of interest in the subject matter of the suit by producing an unregistered document one cannot succeed but the document can be used for collateral purposes means the purposes for which if a document is coming to existence that does not require registration it could be looked into that's why I gave you an example of partition now for example today section 17 one capital A is introduced in the registration act making it compulsory for registration of an agreement of sale for the purpose of section 53 capital A if the document is not registered that the document cannot be used for the purpose of 53A but the document can be used for the purpose of finding out whether there was a contract for sale or not so to find out whether it's contract for sale it is a collateral purpose if you want benefit under 53A it requires this because the agreement of sale need not be in writing under law it can be oral also yes this is by uh standard clause both plaintiffs counsel and defendant counsels uh did not appear in the court but the plaintiffs appeared in the court whether the judge can object the plaintiff not to come to the court without the lawyer and won the plaintiff normally when a party has engaged the counsel he should speak through his counsel both the party and lawyer both come to you but when the advocate is not there only party is there if he is decent no judge will say if he is mischievous to get it on they say go and let you on lawyer there is nothing like a law is all how a court manages his court uh this is by Siri Kantheshwar is it necessary for the plaintiff to enter the witness box and get the documents marked as exhibits in a partition suit with the plaintiffs when the defendants have admitted the plead uh the pleadings in view of order 12 that's what i said after the pleadings are completed issues are framed either all the issues the bad enough group may be on the plaintiff or some of the issues on the plaintiff some of the issues of the defendant if the defendant admits the case of the plaintiff and please discharge then there is no necessity for the plaintiff to enter the witness box in the defendant phase to prove his defense suit is to be degree therefore the right to begin in such cases is on the defendant order 18 rule 1 is very clear right to begin normally on the plaintiff when the defendant has admitted the case and he has set up a particular defense to defeat the right of the plaintiff the right to begin is on the defendant he can enter the witness box that's saying uh how can we exhibit an electronic evidence and evidence when original copy of such document is lost that's what i said success now everything involves on 65 and the cross examination of that original if you did not with you the law says secondary evidence and all this evidence ultimately the court has to apply its mind and as i say it accepts you somehow you are only at the stage of production and what best you can do you can do it and ultimately the court will decide whether that particular fact is proved or not madhuri if a document is wrongly exhibited then there is no provision of de-exhibiting cpc so what can be done in such a case if your document is wrongly admitted which requires stamp duty exhibited exhibited that's correct document is exhibited but the document is not unique stamp in the same proceedings or in the higher proceeding that objection cannot be taken if it is not a cost of stamp duty some other thing wrongly done the court will ignore it is all the court is a forward to reject at any point of time or normally what they do they will not act upon the law dharamraj due to non-appearance of plaintiff and his counsel court has passed a dismissal order in such case what further steps should be taken normal dismissal order dismiss for default order is passed after 9 to 9 provides for filing an application for setting aside the order of dismissal and restoring the suit by showing sufficient cost for non-appearance of the party and the counsel and the day the case was dismissed for deport but a suffrage suit is not maintainable he has to file an application and get it restored this is manju can the court allow the alleged will to be marked by the subscribe though attesting witnesses are alive what is the validity of the will mark the production of a will anybody can do normally the proponent of the will has to produce the will neither the evidence of the proponent nor evidence of the strike is proof of will the evidence act is very clear if a document requires to be attested and attested if the document is not disputed accept the will you can produce a certified copy and go ahead but in the case of will original will is to be produced and one attesting witness must be examined any amount of evidence from other sources is of no use if no attesting witness is examined will is not proof thank you sir we don't have any other questions and as usual today also the session is doing extremely well on the facebook and we are all on behalf of the participants of beyond on the panel of beyond law plc as well as on the facebook we are quite thankful for giving us the insights in the three different sessions lot of doubts which were there in the mind of our participant stands to the spirit and those who were actually hearing it for the first time I would not say it was a doubt it was insightful session for all of them on behalf of all the participants we are thankful and tomorrow's session would be taking cue that since you were in the judicial academy we took another person as they say in a relay race to give the pattern from one directed to the another tomorrow we will have the chairman from the deli judicial academy you must be knowing him professor dr. bt call a former chairman of the deli judicial academy culpable homicide and a murder a bird's eye view but do stay connected with us tomorrow though the time is going to be 5 p.m everyone stay safe stay blessed and thank you sir and jai hind to all the participants stay safe and stay home thank you thank you thank you for the opportunity thank you