Law: Civil Procedure Code (V of 1908)

Section: 5,17,96,100

(a) Civil Procedure Code (V of 1908), O. XVIII, r. 5 & O. XXVI, r. 17-Witness, examination of-Words "evidence of each witness shall be read over" in r. 5, O. XVIII-Appending of note by Court that statement of witness had been read over to him-Not necessary-Presumption under S. 80 Evidence Act, 1872 attaches unless rebutted-Evidence Act (1 of 1872), S. 80.   Where the Court while considering the execution of a will excluded the evidence of the scribe of the will on the ground that his statement recorded by the Commissioner was inadmissible in evidence inasmuch as there was no note that the same was read over to him:   Held, that under Order XVIII, rule 5 of the Civil Procedure Code, 1908 the only requirement is that the statement of a witness should be read over to him. It is quite correct that for convenience sake the subordinate Courts do append a note, but the absence of it would not mean that the statement of the witness was not read over to him. Under section 80 of the Evidence Act, 1872 there would be a presumption that the evidence recorded by a Court of law was recorded in accordance with law. This presumption is reputable and if it is rebutted then alone the question would arise whether the statement of a particular witness was admissible in evidence or not. Where no such evidence in rebuttal is led the Court is not justified in excluding the evidence of a witness merely because the Court failed to append a note to the statement of the witness that it was read over to him.   Ram Gopal Dey and another v. Raghu Nath Ghoshall and others 2 Cal. L J 496; Nath Singha Roy and others v. Harifshee Bagdhi A I R 1929 Cal. 78 and Mangu Koeri v. Emperor 51 I C not applicable.   Emperor v. Jagat Ram A I R 1919 Lah. 348 ref.   Empress v. Mayadeb Gossami 6 Cal. 762 distinguished.   Civil Procedure Code (V of 1908), S. 100-Finding of fact-Evidence of important witness wrongly excluded-.Court in second appeal competent to interfere.   Abdul Majid and others v. Khalil Ahmed P L D 1955 F C 38 ref.   Civil Procedure Code (V of 1908), Ss. 96 & 100-Finding of fact-Interference with finding of trial Judge who has seen,…