After the filing of a plaint which must succinctly state the cause of action and the relevant facts, a notice thereof has to be issued by the court process to the defendant or defendants who are then given adequate time and opportunity to file their reply which is called a written statement. If the written statement admits wholly or partly the claim as made in the plaint, a decree on admission can immediately be passed; otherwise, the court has to determine the issue or points of disputes between the parties. In other words, the controversy between the plaintiff and the defendant is reduced or formulated in the shape of a short question to be answered by the judge at the end of the trial.
Under the Civil Procedure Code the main stages through which a case runs are the following:
(i) initiating of a proceeding by filing a plaint or an application;
(ii) issue of notice or summons by the court to the defendants or respondents; appearance of the defendant or respondent and filing of a written statement or reply by him;
(iii) framing of the points of controversy called 'issues' between parties;
(iv) recording of evidence of the plaintiff/petitioner, defendant/respondent; and finally
(v) delivery of judgement by the court.
In these broad stages the trial really begins after the issues have been framed. Before that stage many intermediary steps, which may be considered pre-trial steps, are taken. These are pre-trial only in the sense that they are preparatory to the trial and intended to reduce the area of controversy. These interlocutory proceedings relate to obtaining orders for the following from the courts:
(i) delivery and answering of interrogatories;
(ii) admission and denial of documents and facts;
(iii) discovery, inspection and production of the documents;
(iv) temporary injunction and appointment of receiver or Commissioner.
Thus, in addition to the trial which takes place within the court room, part of the court work in the same situation can be done outside, through a Commissioner to be appointed by the court to record evidence, to make local investigation, to examine or adjust accounts, to effect partitions, to hold technical, scientific or expert investigations, to conduct sale of property which may be subject to speedy and natural decay, or to perform any ministerial act. Commission may also be issued to any other court within the country and a letter of request to courts outside India. The prescribed procedure also permits issue of warrant to arrest a recalcitrant person or a defendant and/or require him to give security. These proceedings and powers are exercised not only for the suit pending before the particular court but also to help arbitration proceedings since the arbitrator, not being a court, has no such powers. That is why the Arbitration Act specifically provides for approaching an appropriate court for obtaining such interlocutory orders from a civil court.
At the first hearing of the suit the court is required to ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement of the opposite party and as are not expressly or necessary implication admitted or denied by the party against whom they are made. From the above it will appear that before the trial, when the recording of evidence begins, motion may be made for an interlocutory order which may either be ex parte or after notice to the opposite party. Materials are submitted by way of pleadings and evidence. The aforesaid procedure is common to all civil courts throughout the country. The trial begins with a plaint or an application (for example, an application under the Arbitration Act for filing the arbitrator agreement and/or appointment of an Arbitrator) and ends with a judgement pronounced in the open court.
The role of the judge generally is not only that of an impartial observer but also of an active instrument who enforces the rules of the game. However, there is a serious controversy in this sphere. There are some judges who believe in being 'activist judges' and others who do not wish to enter the arena of conflict at all. The activist judges believe in exercising their power, authority and influence in rendering positive and effective justice between the parties. For this purpose they would, to some extent, enter the arena of conflict by asking questions of a witness or the lawyers by suggesting a line of attack and defence which they consider is legal, just and proper. They may also 'persuade' parties to settle their dispute amicably.
Normally, the names and addresses of witnesses have to be given well in advance before the commencement of the trial and after the framing of issues in a case. The courts have power to compel the attendance of witnesses by issuing summonses and even issuing warrants of arrest of a witness disobeys a summons. When a witness appears he is examined 'in chief' by the party at whose instance the witness has been called and thereafter the other party has a right to cross-examine the witness. In this process the provisions of the Indian Evidence Act govern the trial. There are stringent rules as to relevancies and the kind of questions that may be put without objection. As
indicated above, some judges sometimes do question the witness with a view to advancing justice. A witness may be declared 'hostile' if he appears to be deliberately deposing against the party who summoned him. In such a case and cases where a witness is called by the court as a court witness, both have a right to cross examine the witness.
The evidence is either recorded verbatim or in a summary form depending on the kind of proceeding. Normally, the evidence is taken down in shorthand if this facility is available, otherwise in longhand. It is usually recorded in the language of the witness but is sometimes recorded in a translated form either in English or the language of the local court. There are as yet no facilities for tape recording evidence in the courts nor are cameras or other recording devices permitted in the court room. After the recording of the evidence parties normally obtain copy to assist them at the time of arguing the case. After hearing arguments which sometimes may go on for several days, the judge either proceed to dictate the judgement in open court or reserves judgement which is later pronounced in open court after due notice to the lawyers for the parties, normally by appearance of the case in the daily cause list of the court. The judgement is recorded by giving findings on each issue and ultimately the conclusion is recorded which is called a 'decree'. Normally against each judgement there are three or four appeals. There may be an intra-court appeal within subordinate court or within the High Court and an appeal may lie to the Supreme Court either as of right or by way of special leave to appeal. The court premises is by law a public place entitling and member of the public to sit and observe the proceedings in an orderly and disciplined manner. Sometimes in appropriate cases proceedings may be held in camera, for example in matrimonial or espionage cases, etc..
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