4 Bom., 98; or the case has been transferred and has been framed to avoid the effect of the decision reported at I. L. R., 7 Alla., 857 ; I. L. R., 8 Alla., 35. See section 193, infra.

Power to examine

192. If a witness be about to leave the jurisdiction of the Court, or if other sufficient cause be shown witness immediately. to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of either party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided.

Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.

The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and may then be read at any hearing of the suit.

Act VII of 1859, section 173. This section applies to P. S. C. C.

An examination under this section being on the same footing as the examination of a witness in a cause must be conducted by counsel - Hoffman vs. Framjee, Coryton, 7, and before the Court: not before a Commissioner-Edwards vs. Muller, 5 B. L. R., 252.

Court may recall and examine witness.

193. The Court may at any stage of the suit recall any witness who has been examined and who has not departed in accordance with section 173, and may (subject to the provisions of the Indian Evidence Act, 1872) put such questions to him as the Court thinks fit. A Court continuing a suit under section 191 may recall. and re-examine a witness who has departed in accordance with section 173.

This section applies to H. C. and P. S. C. C. The last paragraph has been added by Act VII of 1888, section 19.

Power to order any point to be proved by affidavit.

CHAPTER XVI.

OF AFFIDAVITS.

194. Any Court of first instance and any Appellate Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for crossexamination, and that such witness can be produced, an order

O'K., CIV. P.

13

shall not be made authorizing the evidence of such witness to be given by affidavit.

Judicature Acts, Order 37, Rule 1. This section applies to H. C.

Practice -Affidavits cannot be used without an order of Court, nor at all if the opposite party desires the production of the witness for cross-examination- Blackburn Union vs. Brooks, 7 C. D., 68; but see De Mora vs. Concra, 32 C. D., 141.

The Supreme Court would not admit an affidavit to correct the certificate of an officer of Court to shew it was wrong-Doss vs. Denee, Fulton, 165.

Form of Affidavit.-Each consists of three formal parts: (1) the title; (2) the name and place of abode of the deponent; (3) the jurat. The title should give the style of the Court and the names of the parties to the action as given in the proceedings and describe the affidavit as entitle the cause in which it is filed. The jurat generally written on the left corner of the affidavit must state that the deponent was sworn (if there are more deponents than one, the several names must be given ), and the day of the month on which it was made, and should shew that the person before whom it was sworn had jurisdiction. See note under section 180, ante.

195. Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance, for cross-examination, of the declarant.

Power to order attendance of declarant for cross-examination.

Such attendance shall be in Court, unless the declarant is exempted under this Code from personal appearance in Court, or the Court otherwise directs.

Judicature Acts, Order 37, Rule 2. This section applies to H. C.

Cross-Examination.--In interlocutory proceedings cross-examination will not be allowed on affidavit, because it would defeat the object of the whole proceedings, which is despatch. In final proceedings cross-examination will be allowed.

Affidavit in Reply. Instead of a cross-examination plaintiff will be allowed to file an affidavit meeting matter which has been first raised in defendant's affidavit. A party will be allowed to bring new matter before the Court by a replying affidavit-Peacock vs. Harper, 7 C. D., 648. Act VI of 1855 is the foundation of the practice on the Original Side of the High Court in the matter of affidavits-Robarts vs. Steele, 20th December 1877. Exempted."-See sections 640, 641, post.

Matters to which affidavits shall be confined.

196. Affidavits shall be confined to such facts as the declarant is able of his own knowledge to prove except on interlocutory applications, on which statements of his belief may be admitted, provided that reasonable grounds thereof be set forth. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party producing the same.

Judicature Acts, Order 37, Rule 3. This section applies to H. C.

Irregularity-Leave to file informal affidavits cannot be obtained from a Court of Appeal.-W. N., 1876, p. 157. An affidavit couched in the form "I, A B, of &c. say instead of in the usual form "I, A B, make oath and say" is inadmissible-Allen vs. Taylor, L. R., 10 Eq., 52.

Objections To.-It would appear that objections to irregular affidavits should be taken when the affidavits are put in, as objections to a deposition taken by commission

for irregularity should be made when the deposition is tendered in evidence and not by an interlocutory motion to take it off the record-De Britto vs. Hillel, L. R., 15 Eq., 213. An objection for length and irrelevancy should be made at the time of hearing-Owens vs. Emmens, W. N., 1875, pp. 210, 234.

197. In the case of any affidavit under this Code(a) any Court or Magistrate, or

Oath of declarant by whom to be adminis

tered.

(b) any officer whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the Local Government has generally or specially empowered in this behalf,

may administer the oath of the declarant.

This applies to H. C.

The jurat should describe the person before whom the affidavit has been sworn, so that it may appear to have been taken by a competent authority.

Judgment when pronounced.

CHAPTER XVII.

OF JUDGMENT AND DECREE.

198. The Court, after the evidence has been duly taken, and the parties have been heard either in person or by their respective pleaders or recognized agents, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders.

Act VIII of 1859, section 183. This section applies to P. S. C. C.

A judgment does not create a right or title, it only asserts an antecedent oneDoss vs. Bannerjee, 1 Boulnois, 80.

The meaning of this section is that judgment must be given upon evidence duly recorded before the Judge himself, and not on evidence taken before another person, unless where such evidence is as it is under sections 382, 391 and 191, admissible at the hearing-Naranbhai vs. Naroshankar, 4 Bom., 102, but the irregularity may be waived by consent of parties, and would not be a good ground for reversing a date in special appeal unless it appeared that the appellant had been prejudiced by it.-Radhanath vs. Jodonath, 7 W. R., 441, and see IRREGULARITIES," section 191, ante.

66

Judgment in Open Court.-Judgment should be pronounced in open Court; but where a Judge made a local enquiry, and taking evidence on the spot gave judgment there instead of returning to Court, the irregularity was not considered a good ground of appeal-Nilmoney Singh vs. Bhobany Churn, Marsh., 327.

Oral Opinion.-There is no objection to a Judge at the close of the hearing of a suit stating at once orally the judgment which he intends to record and deliver; but it would not be a judgment; he must afterwards pronounce his written judgment in open Court-5 Mad., VIII.

Written Opinion.-The written opinions of the Judges of the High Court who have heard the case, but who have ceased to be Judges before judgment is pronounced, can only be regarded as mere minutes and not as judgments-Mutty Lall vs. Deshka, 9 W. R., 1.

Power to pronounce

199. A Judge may pronounce a judgment written by judgment written by his predecessor, but not pronounced,

Judge's predecessor.

This section follows the decision in the case of Parbutty vs. Higgin, 17 W. R., 475. It applies to P. S. C. C.

Effect of Obtaining Judgment.-As to the meaning to be attached to similar words in an Act of the Legislature see Mungniram vs. Gursahai, I. L. R., 17 Cal., 347, p. 357.

200. The judgment shall be written in the language of the Court, or in English, or in the Judge's mother-tongue.

Language of judg

ment.

Act VIII of 1859, section 184. This section applies to P. S. C. C.

Under Act VIII of 1859, the judgment must have been written either in the vernacular language of the Judge, or in English; under the present law another alternative, the "language of the Court," has been added. See on this point section 645, infra. The irregularity of recording a judgment in the wrong language does not affect the validity of the decision-Huro Soonduree vs. Sreedhur, 17 W. R., 352.

Translation of judg

ment.

201. Whenever the judgment is written in any language other than that of the Court, the judgment shall, if any of the parties so require, be translated into the language of the Court, and the translation shall also be signed by the Judge or such officer as he appoints in this behalf.

Act VIII of 1859, section 185. This section applies to P. S. C. C.

and signed.

202. The judgment shall be dated and signed by the Judgment to be dated Judge in open Court at the time of pronouncing it, and shall not be altered or added to, save to correct verbal errors or to supply some accidental defect not affecting a material part of the case, or on review.

Act VIII of 1859, section 185. This section applies to P. S. C. C.

Date of Judgment.-This means the date on which the judgment is deliveredMamtazul Huq vs. Milhai, I. L. R., 9 Cal., 711. See "DATE OF DECREE," section 205, infra.

Shall not be Altered. This section prohibits the Judge from adding to his judgment. Under Act VIII, the High Court at Calcutta decided that, though the Code did not authorize the recording of any further grounds for a decision or of any addition to a judgment once delivered, such a course was not expressly forbidden, and a Judge might lawfully append to his judgment such additional reasons as might tend more fully to show the correctness of the decision at which he had arrived, provided the further grounds did not alter the ground on which the decision proceeded-Snadden vs. Todd, Finlay & Co., 7 W. R., 286. But it seems doubtful whether such a mode of procedure would now be countenanced by the Privy Council. Their Lordships, referring to a somewhat similar practice, said: "The rule requires the reasons given by the Judges to be communicated to the Registrar," and the observations made by Lord Kingsdown, in delivering the judgment of the Committee in Brown vs. Gregory, show that these reasons ought to be stated publicly at the hearing below, and should not be reserved to influence the decision of the Court of Appeal-Richer vs. Voyer, 5 App. Cas., 481.

Wrong Judgments. It is the duty of every Judge to proceed as far as the practice of his Court will allow him to recall and cancel any invalid_order which he has made per incuriam-Tuffuzool Hossein vs. Rughoonath Prasad, 8 B. L. R., 186; 14 Moore, 40, p. 48. See on this point Luchman Singh vs. Mohan, I. L. R., 2 Alla., at p. 505; and compare Muhammad vs. Abdul, 16 Ind. App., 104; Blake vs. Harvey, 29 C. D., 827, p. 833.

English Practice.--In England, a Judge may always reconsider his decision until the order is drawn up-In re St. Nazaire Co., 12 C. D., at p. 91. See HIGH COURT," section 206, infra.

Termination of Suit.-The termination of a suit mentioned in Article 89, Act XV of 1877 is when judgment is given in the Court in which the action is commencedBalkrishna vs. Govind Shiraji, I. L. R., 7 Bom., 518.

203. The judgments of the Courts of Small Causes need Judgments of Small not contain more than the points for determination and the decision thereupon.

Cause Courts.

The judgments of all other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and

Judgments of other

Courts.

the reasons for such decision.

Act VIII of 1859, section 185. This section applies to P. S. C. C.

Courts of Small Causes.-If the judgment of a Small Cause Court is defective, the High Court can set aside the decree and direct a trial on the merits-Malik Rahmat vs. Shiva Prasad, I. L. R., 13 Alla., 533.

Judgment, what is-When a Court consist of more Judges than one, the memoranda written by the Judges when apart do not amount to a judgment, and a final decision or determination should not be pronounced until the Judges, by conference and discussion of the points, have striven to arrive at an unanimous judgment-Khelut Chunder vs. Tarrachurn, 6 W. R., 269; Rohilkhand and Kumaon Bank vs. Row, I. L. R., 6 Alla., 468. And the opinions of Judges who have heard the case, but cease to be Judges of the High Court before judgment is pronounced, caunot be treated as judgments, but as mere minutes or memoranda - Mohamed Akil vs. Asadunnissa, 9 W. R., 1; Brand vs. Hammersmith and City Railway Company, L. R., 2 Q. B., 223.

Judgment, effect of. It is extremely doubtful whether there exists in India (exclusive of the particular jurisdictions which are exercised by the Courts in matters of probate and the like-Evidence Act, section 41; and those which, in case of war, might be exercised in matters of prize) any ordinary Courts capable of giving what can be technically called a judgment in rem-Jogendur Deb vs. Funinder Deb, 17 W. R., 104; the Mofussil Courts cannot-Kanhya Loll vs. Radha Churn, 7 W. R., 338; Gungadhur Roy vs. Umasoondery, 7 W. R., 347; Yarakalamma vs. Ankala, 2 Mad., 276; Kuttama Nauchear vs. Shivagungah, 2 W. R., P. C., 31.

Between Parties.-Their judgments are only judgments inter partes, and do not conclude any persons but the plaintiffs and defendants, or their representatives, on the same matter-Balaji vs. Dharma, 2 Bom., 363, and a Judge should not allow his judgment in one case to govern his decision in another (where either party is different) without the consent of both, though the subject-matter of the dispute is similar, and the evidence is similar in character-Sorendronath vs. Purmanund, 15 W. R., 342.

Evidence. Such judgments do not conclude other parties, and should not be admitted in evidence against them-Gujju Lall vs. Fatteh, I. L. R., 6 Cal., 171; unless to prove a custom-Jianulullah vs. Romoni, I. L. R., 15 Cal., 233; or to show the character of the enjoyment of the possessor-Peari Mohun vs. Drobomoyi, I. L. R., 11 Cal., 745; Rameshur Pershad vs. Koonj, 6 Ind. App., 33; or the landlord-Hira Lal vs. Hills, 11 C. L. R., 529; and see The Collector of Gorakhpur vs. Palakdhari, I. L. R., 12 Alla., 1; or the possession in fact at the time of the litigation-Neill vs. Duke of Devonshire, 8 App. Cas., 135, p. 165. See Baijnath Sahay vs. Rughonath, 12 C. L. R., 186, p. 187. See EVIDENCE," section 206, post.

Contents of Judgment.-By section 359, Act VIII, 1859, it was declared that a judgment should contain the point or points for determination of the decision thereon and the reasons for the decision, and it was held that under that section the Judges should distinctly record in their judgments the points to be decided, their findings on each point raised, and their reasons for them-Gouhur Ali vs. Ashrufoonissa, 9 Moore, 496; Chunder Kant vs. Hurish, 1 W. R., 214; Shurbessur Ghose vs. Sadhoo, 15 W. R., 130. In the case of Katchekaleyana vs. Kachivijaya, 12 Moore, 495, p. 502, in which the Judges of the High Court gave no reasons for their judgment, their Lordships of the Privy Council said: "Their Lordships have considered this case, and they must, in the first place, express their regret that the record contains no statement of the grounds of the decison of the High Court which is now under appeal. The Charter of the High Court of Judicature, section 42, expressly requires that the reasons of their finding should be recorded by the Judges and transmitted for the information of this Court, and it is the subject of great regret, especially in a case which comes before their Lordships ex parte, that the grounds of the judgment appealed from should be wanting in the record. But in the absence of any such information, their Lordships must deal with the case as it appears on the record in the present suit.' See also Ramasami vs. Bhaskarasami, I. L. R., 2 Mad., at p. 70; Shaikh Muhammad vs. Zubaida, 16 Ind. App., 205, p. 210; I. L. R., 11 Alla., 460. And in another case their Lordships ruled that, in all appealable cases, the