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peal, a memorandum should be filed with the records, showing the date on which the first hearing was filed, and the dates on which the written statements of the parties were filed. (U. C. O. C. H. C., 32.)

(b) This will meet the case in which a plaintiff may choose to drop his suit.

(c) It is discretionary with a defendant whether he file a written statement or not at first hearing, unless he wish to claim a set-off. Bom. C. O., Panj. C. O. 5., Cen. P. (d) By sec. 19 III. Act VII. 1870, these are exempted from the payment of any Court fees.

The Bom. H. C. advise that this power should as a rule be exercised only where the case is complicated or defendant not present; they should always be as brief as the circumstances of the case permit. Plaintiffs should never be encouraged, or much less required, to put in written replies to defen. dant's answers. The procedure required by sec. 118 should rather be resorted to.

1t is usual for Courts to order

written statements to be filed if one of the parties asks for them, unless it appear that the application is only brought with an intention to harass or delay, see S. M. Dasimani Dasi v. Srinath Ghose B. L. R. III, 11, where such a statement was granted under very exceptional circumstances. (e) For such neglect it was ordered

dant hopes to prove at the

trial has been allowed to be suffi-
cient. Mukta Keshi Dasi v. Koilas
Chandar Mittar S. W. R. VII,
493.

(g) If application be made that a
written statement be verified by a
person other than one of the par-
ties, notice should be given to the
other side, or very good cause
shown why it was not given.
Campbell v, Steel, In, Jur. N. S., I.
38.
Persous exempted from attendance
in Court are not exempt thereby
from subscribing and verifying
their written statements. Dinoo
Singh Rai v. Esan Chandar Rai,
Wym. Rep. II. 253,notes to sec. 116.
(h) Objections of this nature should
be taken before the case is ripe
for hearing Smallwood v. Parry,
Coryton R. 39.

in Ramratan v. Oriental Steam
Company, Hyde II. 89, that the
defaulter should be examined and
confined throughout the case to
his statement in the witness box
In Shama Sundari Dasi v. Brin-
dabadub Mitter, the Court refus-
ed to hear counsel who had
been instructed to appear for the
defaulter.

(f) Belief founded upon the merest
rumour of a fact which defen-

In case Booli Sing v. Harbans Narayan Singh S. W R. VII. 212, a Principal Sadr Amín fined a vakíl one rupee for filing a written statement which he considered too lengthy, and ran his pen through a large portion of it including a plea of limitation. The Judge on appeal went into the question of limitation. This was held to be right. The P. S. A. was held to be wrong in fining.

In Ghur Chandar Biswas v. Grish Chandar Biswas, 8. W. R. VII., 120, it was held that an equitable defence, though not put forward in the written statement, may be

set up.

In Chora Kara v. Isa Bin Khalifa,
B. L. R. I. 209, it was held that
it is hereby contemplated that
a defendant shall, in his written
statement, set forth the case he
intends to make at the trial.
The rule followed in Eshenchunder
Sing V. Shamacharn
(11 M. I. A. 7) Muhammad

Datt:

Zahoor Ali Khan v. Mussamat Thakurani Ratta Koer (11 M. 1. A. 468) and Narainee v. Nurro

*See p. 77.

†See p. 81.

written statements.

116. (124) If it appear to the Court that any written Rejection of argumenta- statement, whether called for by the tive, prolix, or irrelevant Court or spontaneously tendered, is* (h) argumentative or prolix, or contains matter irrelevant to the suit, the Court may amend it then and there, or may, by an order to be endorsed thereon, reject the same, or return it to the party by whom it was made for amendment within a time to be fixed by the Court, imposing such terms as to costs or otherwise as the Court thinks fit.

When any amendment is made under this section, the
Judge shall attest it by his signa-

Attestation of amendments.

ture.

When a statement has been rejected under this section, the party making it shall not present another written statement, unless it be expressly called for or allowed by the Court.

Effect of rejection.

CHAPTER IX.

OF THE EXAMINATION OF THE PARTIES BY THE COURT.
M. 117. At the first hearing of the suit the Court shall

Ascertainment from each

party whether allegations in
written statements are ad-

mitted or denied.

ascertain from the defendant or his pleader whether he admits or denies the allegations of fact made in the plaint, and shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissionst (a) and denials.

M. 118. (125) At the first hearing of the suit, or at Oral examination of party any subsequent hearing, any party or companion of himself or appearing in person or present in his pleader. Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.

119. (125) The substance of the examination shall be

Substance of examination to be written.

M. 120. (127) If the Consequence of refusal or inability of pleader to answer.

reduced to writing by the Judge, and shall form part of the record. (b)† pleadert(c) of any party who appears by a pleader refuses or is unable to answer any material question relating to the suit which the Court

hurry. Marsh 70). that a plaintiff must be held to the state of facts and equities alleged and pleaded by him in his plaint, or involved in or consistent therewith, applies also to the case made on the pleadings by a defendant. Therefore, where the defendant in a suit in ejectment averred in his written statement that the land in dispute was in fact his, but had previously to 1865 been encroached on by the plaintiff, and that the defendant then, in order to avoid litigation, compro

mised the dispute by payment to the plaintiff of a sum of money, and purchased the land, and had since then remained in possession of it: Held that the only defence open to the defendant was that of purchase, and that he could not be allowed at the trial to prove a case of continuous user and possession adverse to the plaintiff commencing before 1865. For a case of striking out foreign matter see Halford v. E. I. R. & B. L. R.

XII. 19.

CHAPTER IX.

Descendat in Campum petitor.

THE provisions for the examination of parties are left almost the same as they stood in the old Code. Attention is however drawn to the following.

(i) The Court may, if it think fit, put in the course of the examination questions suggested by either party.

(2) A Judge is bound to clear the way before him by calling upon either party to admit or deny seriatim the allegations of fact made in the wrtiten statements of the other. These are all to be recorded.

Madras High Court on posting of cases &c.

The Madras High Court (p. 77) direct that in the list of cases posted for hearing, the number of each case, the names of the parties and also those of their pleaders are to be specified. Suits and petitions are to be brought on for hearing according to their order on the file, and eight clear days are always to be allowed between posting and date of hearing

They further direct every procedure towards the hearing (p. 99), or decision of a suit to be taken according to the order of the suit on the file. Suits in which no step can be taken will thus be postponed in favour of those ready for advancement, and every suit ready for advancement will be taken up according to its order on the file. No departure should be permitted from this rule except for good and sufficient reason, of which the Judge must give explanation. Where there are special urgent reasons, as when a sepoy with limited leave of absence is a party, the order on the register may be departed from.

The several papers on a record (p. 86) are to be endorsed according to their contents, every paper having at the head of endorsement the number of the suit to which it belongs. Plaints must be endorsed with the names of parties and their pleaders. If any of the parties die, the numbers attached to their names are nevertheless to be continued, and the names of their legal representatives to be numbered consecutively to those of original parties; fresh parties brought in are to be numbered consecutively to plaintiffs or defendants, as the case may be, already in the suit.

Bombay High Court on evidence of persons of rank, low caste, and Parsees.

The Bombay High Court direct that when a 1st class Sirdar has to attend any Court, he is to be provided with a chair on the raised platform on which the Judge sits, and shall give his evidence sitting.

A 2nd and 3rd Class Sirdar is to have a chair in some convenient place below the raised platform, and shall give his evidence sitting.

All native gentleman who by Government Notification of 30th April 1866 do, or by any similar notification shall rank with 1st, 2nd, and 3rd class Sirdars respectively will be treated as laid down in the foregoing paragraph.

All Sirdars should stand while the affirmation or oath is being administered, and should take their seats immediately after. Bom. C. Q. p. 100.

Low caste persons are to be allowed free access to the interior of every Court,'arrangements being made to avoid the possibility of their being brought into any sort of contact with the rest of the community (Bom, S. D, A, C, O. 17th November, 1843).

*S. 66.

is of opinion that the party whom he represents ought to answer, and is likely to be able to answer, if interrogated in person, the Court may postpone the hearing of the suit to a future day, and direct that such party shall appear in person on such day.

If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit.

† S8. 110

CHAPTER X.

OF DISCOVERY AND OF THE ADMISSION, INSPECTION, PRO-
DUCTION, IMPOUNDING, AND RETURN OF DOCUMENTS.
M. 121. Any party may at any time, by leave of the
Power to deliver interro- Court, deliver through the Court
gatories,
interrogatories in writing for the
examination of the opposite party, or where there are more
opposite parties than one, any one or more of such parties,
with a note at the foot thereof stating which of such inter-
rogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same person without the permission of the Court, and that no defendant shall deliver interrogatories for the examination of the plaintiff unless sucht defendant has previously tendered a written statement, and such statement has been received and placed on the record.

Inquiry into propriety of exhibiting interrogatories.

M. 122. Interrogatories delivered under section 121 shall be served on the pleader (if any) of Service of interrogatories. the party interrogated or in the manner hereinbefore provided for the service of summons, and the provisions of sections 79, 80, 81, and 82 shall, in the latter case, apply so far as may be practicable. M. 123. The Court, in adjusting the costs of the suit, shall, at the instance of any party, inquire or cause inquiry to be made into the propriety of delivering such interrogatories; and if it thinks that such interrogatories have been delivered unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault. M. 124. If any party to a suit be a body corporate or a joint stock company, whether inService of interrogatories corporated or not, or any other body of persons empowered by law to sue or be sued, whether in his own name or in the name of any officer or other person, any opposite party may apply to the Court for an order allowing him to deliver interrogatories

on officer of corporation or

company.

With reference to the custom of wearing shoes, native gentlemen who prefer the native form and wear native shoes will be required to leave their shoes before stepping on to the carpet on being sworn. If they adopt the European custom and wear European shoes, they will be so admitted. Parsees always to be allowed to retain their shoes when they are in the act of taking an oath. Bom. C. O. p. 111,

Panjab and Central Provinces on Cause Lists. P. p, 26, C. P., p. 19.

Cause lists are to be prepared (weekly if not daily in the Panjab) monthly, ruled for the whole month, or oftener when cases are very numerous, giving the dates for hearing of all cases to be tried.

They are to be prepared in the vernacular, on good strong paper, and hung where they can easily be seen in the Court-room or verandah on a board. The order laid down in them for hearing is not to be departed from, save for very cogent reasons.

The Central Provinces Rules are more detailed. They direct that a case as soon as it is appointed for hearing, should be entered in the cause list at the proper date. As each case is heard, it should be scored out, and at the end of the month all pending cases transferred to the new list. The lists are not to be destroyed, but taken down and kept for reference: in the col. of remarks it must always be noted what became of the case on the day appointed. It is desirable that European officers should have a duplicate of the cause list in English, unless they can get all the information they need satisfactorily from the vernacular one. The Clerk of the Court is responsible that these are properly prepared. For Cause Lists in execution of decree cases see preface to Chapter XIX.

(a) The plaintiff and defendant

should always be confronted and examined in each other's presence. Tahsildars should take up no cases in which they or their relatives or dependents or subordinates are interested. They should forward such petitions to the Deputy Commissioner without registering them, and the Deputy Commissioner shall decide where they are to be tried. (P. C. O. I. 155.) For law governing admissions, see Evidence Act I. 1872. secs. 17, 23. Admission of the execution of a document is conclusive proof of its execution against the party

so admitting (sec. 70), but all admissions are not in themselves conclusive proof as they are too often considered (sec. 31). (b) (b) Not applicable to the High Courts in original civil jurisdiction, sec. 628.

(c) A Court was held to have acted wrongly when it decreed a suit ex parte merely because the defendant, who was present, was not prepared to put in a written statement. Sidarajadhni Nilakantham Pillay v. Suppagantulla Pantula. M. H. C. R. II,, 311. An appeal lies from orders under this section, sec. 588.

CHAPTER X.

De non apparentibus et de non existentibus eadem est ratio.

THE first seven sections of this chapter are entirely new. They apply to interrogatories. By the English Common Law Procedure Act 1854 secs. 51 and 52, either party to an action may obtain leave from a Judge to deliver to the other, if liable to be called as a witness, written interrogatories on any matter in which discovery may be sought, and these interrogatories must be answered on affidavit. If the answers are insufficient, the party to whom the interrogatories are directed may be required to answer them further. Vexatious, irrelevant and immaterial interrogatories are provided against. The section following these is also new ground. Ten days at least before the hearing of a suit any party can require another to admit the genuineness of a document material to the suit. If he fails to do this, he will, if the Judge considers he should have made the admissions, be mulcted in the costs incurred in proving the document in question. Then come orders for production and discovery of documents relating to the matter in question. The sections relating to orders for discovery are also borrowed from the English Common Law Procedure Act. The order

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