• Author: Dr. Mohan Dewan and Adv. Aditya Chitale

" We have forgotten, in our obsession with interim applications, that trial is the single most daunting challenge before any lawyer1 "

Justice Gautam S. Patel

This is a brief commentary about handling trials successfully and doing justice to the brief on behalf of a client.

Upon being entrusted with the papers and after obtaining the client’s instructions, it is important to analyse the pros and cons of the case, study the law on the subject, do a research on the case law relating to the issues arising and mentally formulate an overall strategy for eventual success as well as the steps in detail needed to achieve it. In case of a plaint, the same should be drafted by stating the facts chronologically, referring / annexing documents wherever applicable and making out a case for grant of reliefs by structuring the pleadings to suit the law on the subject. Lastly, the prayers, both final and interim, need to be drafted aptly. The Plaintiff is also entitled to file an application for interim reliefs along with the plaint. These proceedings are to be heard separately. Before drafting a written statement, once again, a formulation of the overall strategy for success is to be chalked out. The defense of the Defendant should ideally be narrated in a chronological manner by referring to documents wherever applicable. Once the narration of facts is completed, para-wise rebuttals of all the averments and allegations made by the Plaintiff must necessarily be made including going into details of contentious and disputed averments which could later on arise as one of the issues to be framed in the matter. The Hon’ble Supreme Court in the matter of Balraj Taneja (supra) & Anr. vs Sunil Madan & Anr2. has analysed the provisions of Order 8 (Written Statement) of Code of Civil Procedure, 19083 and held that the Defendant in its Written Statement ought to specifically deal with and explain the circumstances according to which the Plaintiff would be disentitled for reliefs. It further held that mere denial would be insufficient.

Once the pleadings stage of the matter is concluded, the next stage is the that of filing of documents by both sides and a statement of admission and denial of the documents. This statement of admissions and denials should contain the admission or denial of any document in relation to both its receipt as well as its contents. Thereafter, in case if there is any doubt about the genuineness of any document filed by the opponent, inspection of the original of the same can be prayed for. Once this stage of admission and denial of documents and inspection and discovery is over, issues for determination are to be framed by the Court. Under Order 14, Rule 1 of the CPC, once the issues are framed, the trial is said to have started.

The next stage is the filing of affidavits of evidence of the Plaintiff’s witnesses. The judgment of the Hon’ble Bombay High Court in Shamrao Vishnu Kunjir v Suresh Vishnu Kunjir4 is lucid as it sets out the manner in which a proper affidavit of evidence should be drafted. The affidavit should be restricted to the pleadings already in the plaint in so far as they relate to personal or documentary knowledge of the witness. It is important to note that in case any averment is made in the affidavit which is either outside the pleadings, or is in the form of submissions or not relevant to the issues framed, the same is liable to be struck off / expunged as held by the Bombay High Court in some of its judgments in the matters of Late Shri Rajendra Singh, Chhatrasal Singh Kushwaha v Mr. Jitendra Singh Rajendra Singh Kushwaha5 and Harish Loyalka vs Dileep Nevatia & Ors.6 .

The witnesses of the Plaintiff are then liable to be cross-examined by the Defendant. The purpose of cross-examination is, on the whole, to impeach the credibility of the witness. The Hon’ble Supreme Court in the matter of Laxmibai (Dead) through Lrs. & Anr. vs. Bhagwantbuva & Anr. through Lrs. & Ors.7 has held that if a party wishes to raise any doubt as to the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being true. It has further been held that, without this it is not possible to impeach the witness’ credibility. It has been held that the opposing party is permitted to test the veracity of the witness and thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts with regards to the same, in the absence of questions put to him with respect to the circumstances which indicates that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. It has been further held that, thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box to give a full and proper explanation. It has been further held that the same is essential to ensure fair play and fairness in dealing with witnesses. It is further important to note that the witness must be cross-examined on all issues raised by him in his affidavit as, in the absence of cross-examination on any issues raised in his affidavit, those issues in respect of which a witness does not get cross-examined stand proved in favour of the party whom the witness represents. The importance of cross-examination of the opponent’s witness can never be overstated. It is the core of any matter which can decide the fate of the matter. In this context, the quote appearing at the top of this piece which forms a part of the ratio laid down by the Bombay High Court in Sulochana Dinanath Tarkar & Ors. vs. Anil Dinanath Tarkar & Ors.8 is useful. The Court held that held that it is not simply a matter of shooting out questions without regard for how those questions are worded or what is that is being suggested. A skilled cross-examiner is always cautious when he “puts” something to a witness, because when he does so he takes the burden of proving what he suggests; and that suggestion must be rooted in the client’s pleadings. The High Court has gone on to hold that the cross-examination of the witness in that case was a perfect example of what a cross-examination should not be. The High Court has gone on to quote the questions and on that basis held that the said questions destroy the Defendant cause in that case beyond any hope of redemption and the said cross-examination utterly destroys the case of the Defendant in that case. In so far as the evidence of the Defendant is concerned, a similar procedure regarding filing of affidavit of evidence and the cross-examination is to be followed.

Once the evidence of both sides gets completed, the Suit is thereafter to be heard finally based on the oral and documentary evidence on record. The final stage is the passing of the judgment by the learned trial judge. At this stage, the judge is required to restrict his judgment only to the pleadings, the oral and documentary evidence on record and case law on the issue at hand and his judgment has to answer all the issues before him and, lastly, either decree the Suit (wholly or partly) or dismiss the Suit.

Though it cannot be said that following the tips narrated above is a guarantee of success in each matter, it certainly can be said that it goes a long way in increasing the chances of succeeding in a matter.

1para 20 in Sulochana Dinanath Tarkar & Ors. vs. Anil Dinanath Tarkar & Ors 2019 (3) BomCR 168

2(1999) 8 SCC 396


4AIR 2005 Bom 294

52013 (6) Mh.L.J. 802

62014(4) ABR 545

7(2013) 4 SCC 97

82019 (3) BomCR 168





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