Commencement of trial
Querist :
Anonymous
(Querist) 24 October 2011
This query is : Resolved
Whether the Decision of the Hon'ble Supreme Court Regarding the commencement of trial in Vidyabai & Ors Vs Padmalatha & Anr. Reported in AIR 2009 SC 1433 is over ruled ?
In the Above case the Supreme Court Ruled that the date of commencement of trial is the date on which the chief affidavit is filed
Devajyoti Barman
(Expert) 24 October 2011
Here filed mean when the chief is effectively filed by way of proper tender.
Arun Kumar Bhagat
(Expert) 24 October 2011
I do not know about this judgement but in my view Trial begins with framing of Charge.
prabhakar singh
(Expert) 25 October 2011
YOU CAN NOT SOLVE THE QUESTION BY PUTTING A QUERY IN SUCH AN ABSTRACT FORM WITHOUT FACT.
THE COMMENCEMENT OF TRIAL IN ANY CIVIL CASE BEGINS AFTER FRAMING OF ISSUES WAS THE LAW LAID DOWN IN THE CASE REFEREED BY YOU WITH REFERENCE TO ORDER 6 RULE 17 PROVISO INSERTED BY AMENDMENT ACT 2002 OF CPC which reads as under:
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."
THE RATIO DECENDI IN THE CASE IS FOUND IN PARA 14 OF THE JUDGEMENT AS "14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
ONE SHOULD UNDERSTAND THAT EVEN IF AN AFFIDAVIT IS FILED ALONG WITH PLAINT IT SHALL NOT BE CONSIDERED PLAINTIFFS CHIEF UNLESS ISSUES ARE FRAMED AND DATE FOR FINAL HEARING IS FIXED AS IT BE THE DATE OF FINAL HEARING SO FIXED THE PLAINTIFF CAN BE CROSS EXAMINED NOT EARLIER.
Raj Kumar Makkad
(Expert) 25 October 2011
You have raised simple query whether the given citation has been overruled or not and my simple reply is no.
prabhakar singh
(Expert) 25 October 2011
The answer given refers to past also.
