Statement and production of evidence:
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.] (Order XVIII, Rule 2).
Recording of evidence:
(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.] (Order XVIII, Rule 4).
Burden of Proof and right to Lead Evidence:
It is clear from Rule 3, that in case the burden of proving some of the issues lies on the defendant, the plaintiff while starting his evidence may lead the same on all the issues including those the burden of which is on the defendant or reserve his right to lead evidence on the issues the burden of which is on the defendant after the latter has produced his evidence.
Provision of Party appearing as Witness—Directory [Order XVIII, Rule 3-A]:
Where the party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the court for reason to be recorded permits him to appear as his own witness at a later stage. [Order XVIII, Rule 3-A],
The provision of Order XVIII, Rule 3-A is directory. The rule does not contain any penal provision to make it mandatory. Since the provision is directory, it is open to the trial court to grant or not grant an opportunity to a party to examine himself later.
The very language of Rule 3-A gives an option to the trial court to permit the examination of the party later, i.e., after the examination of the other witness or witnesses of his, provided the trial court is satisfied that it is necessary to do so on the facts and circumstances of the case.
Examination of witnesses:
The new amended Rule 4 of Order XVIII requiring the parties to file examination-in-chief of their witnesses on an affidavit caters to the convenience of the parties and is aimed at quick disposal of the cause. It does not in any way run counter to the spirit and scheme of Order XVIII, Rule 1 which only refers to the parties right to begin.
Recording of evidence on affidavit by Commissioner:
Where the plaintiffs had filed their evidence on affidavit by way of examination-in-chief. Even before cross-examination could commence, various objections were raised by opposite party involving serious disputes. Held, that the same could not be resolved at intervening stage and it would be open to the Court in the course of cross-examination to deal with objections as also evidence led on affidavits as to whether it was based on hearsay or otherwise.
Recording of evidence in form of affidavit not restricted to persons other than parties but also applies to parties:
The sub-title in relation to the amended Rule 4 specifically speaks of “recording of evidence” and is not restricted to those persons other than the parties to the suit. In fact, the expression used in Rules 5, 8 and 13 is similar to that of Rule 4.
The expression “witness” cannot be read in narrow or restricted sense as sought to be read by the respondent but it has to be read in broad sense to include all the persons, including all the parties to the suit who are examined in support of the case pleaded by either of the parties.
Indeed Order XVIII is not restricted to the recording of evidence of the persons other than the parties to the suit but it prescribes the method of recording of evidence in all types of suits and of all the persons appearing to depose in relation to the issues in a suit and in favour of the case of either of the parties, as well as those who may appear or called upon to assist the Court to arrive at just and proper decision in a case. This position is made further clear from Rule 21 of Order XVI.
Oral Evidence, manner and language [Order XVIII, Rule 6]:
The evidence of witnesses shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge. (Order XVIII, Rule 4). In case in which an appeal is allowed, the evidence of each witness shall be,—(a) taken down in the language of the court: (i) in writing by, or in the presence and under the personal direction and superintendence of, the judge; or (ii) from the dictation of the judge directly on a typewriter; or (b) if the judge, for reasons to be recorded, so directs recorded mechanically in the language of the court in the presence of the judge. (Order XVIII, Rule 5).
Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence so recorded shall be interpreted to him in the language in which it is given. (Order XVIII, Rule 6).
Curable irregularities in recording of evidence [S. 99]:
A perusal of the amended Rule 5 of Order XVIII, C.P.C. shows that the requirement of signature of the Presiding Officer was dispensed with by the Parliament by the Code of Civil Procedure (Amendment) Act, 104 of 1976.
It is also not provided in it that the presiding officer shall give a certificate that the statement was recorded on his dictation. Neither the certificate that the statement of the witness was recorded at the dictation of the presiding officer, nor the signature of the presiding officer on the statement of the witness, are mandatory. The absence of these things at best, are merely irregularity due to which no decree is to be reversed or varied nor any case is to be remanded in appeal as provided in section 99, C.P.C.
Illegalities in Recording of Evidence:
Where the statement of the plaintiff was being recorded by the clerk while the presiding officer was busy otherwise, the proceedings would be said to have been conducted by the court in a highly improper manner.
The presence of the presiding officer, while the statement of a witness is being recorded in a court of law, does not mean merely his physical presence in the court room but the presiding officer must be attentive to the proceedings in the case and to the deposition of the witness and it is not permissible that he might be doing some other work while the statement of the witness was being recorded by the clerk of the court without the intervention of the presiding officer.
Memorandum of Evidence:
In unappealable cases it is not necessary to take down the evidence of the witnesses in writing at length, but the Judge may, as the examination of each witness proceeds, make a memorandum of the substance of what he deposes.
In other cases also where the evidence is not taken down in writing by the Judge or from his dictation in open court, or recorded mechanically in his presence, he shall be bound to make a memorandum of the substance of what each witness deposes. Such memorandum shall be written and signed by the Judge and shall form part of the record. (Order XVIII, Rules 13 and 8).
Where English is not the language of the court, but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence as is given in English being taken down in English, the judge may so take it down or cause it to be taken down. [Order XVIII, Rule 9(1)].
Where evidence is not given in English but all the parties who appear in person, and the pleaders of such of the parties as appear by pleaders do not object to having such evidence being taken down in English, the judge may take down, or cause to be taken down, such evidence in English. [Order XVIII, Rule 9(2)].
The court may of its own motion or on the application of a party or his pleader take down any particular question and answer, or any objection to any question. Where any question put by a witness is objected to by a party or his pleader, and the court allows the same to be put, the judge shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the court thereon. (Order XVIII, Rule 11).
Remarks on demeanour of witnesses:
The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination. (Order XVIII, Rule 12).
The court may at any stage of a suit recall a witness who has been examined and may put questions to him. (Order XVIII, Rule 17).
Application for recall of witness for cross-examination:
Where application for recall of witness for cross-examination was filed on the ground that petitioner could not instruct his counsel properly on the date of examination of said witness. Held, that it was a vague ground and as such application was not a bona fide application, hence it was dismissed.
Recording of evidence:
Examination-in-chief in each and every case is permitted in form of affidavit. For taking affidavit on record procedure to be followed in appealable cases has been prescribed in Rule 5. In non-appealable cases procedure under Rule 13 should be followed.
Where a party satisfies the court that after the. exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just. (Order XVIII, Rule 17-A).
The court may at any stage of a suit inspect any property or thing concerning which any question may arise, and where the court inspects any property or thing, it shall make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit.
The inspection should be made before arguments are heard. (Order XVIII, Rule 18). An inspection under this rule is for the purpose of understanding the evidence and cannot be a substitute for evidence of the parties.
Power to deal with evidence taken before another Judge:
Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with the evidence or memorandum taken down or made as if such evidence or memorandum had been taken down or made by him and proceed with the suit from the stage at which his predecessor left. (Order XVIII, Rule 15).
De bene esse examination:
It is the act of taking evidence for future use while it is available. It is chiefly used in reference to an examination out of court and before trial of witnesses who are old, dangerously ill or about to leave the country, on the term that if they recover or return, the evidence be taken in the usual manner. Rule 6 of Order XVIII lays down that where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown to the satisfaction of the court, why his evidence should be taken immediately, the court may, upon the application of any party or of the witnesses, at any time after the institution of the suit, take the evidence of such witness.
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 the Judge shall, if necessary, correct the same and shall sign it, and it may then be read at any hearing of the suit. (Order XVIII, Rule 16).