📘 CIVIL PROCEDURE CODE : ORDER XVIII

• HEARING OF SUIT AND EXAMINATION OF WITNESSES

o Submission of written arguments

o Party to appear before other witnesses

o Recording of evidence: examination-in-chief

o Recording of evidence: cross-exam and re-exam

o Recording of evidence: in presence of Judge

o Interpretation of Rule 4(1)

o Interpretation of Rule 4(2)

o Interpretation of Rule 4(3)

Supreme Court Judgment Discussed In This Post:

• Salem Advocates Bar Assn v. Union of India [2003 SC]

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⚖️ CIVIL PROCEDURE CODE EXPLAINED

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👨‍⚖️ ORDER XVIII

Rule 2(3A) [wef 1.7.2002] Submission of written arguments

• Any party

– may address oral arguments and

– shall submit written arguments before he concludes oral arguments if the Court so permits

• Such written arguments

– shall form part of the record

• A copy of such written arguments

– shall be simultaneously furnished to the opposite party

• Court shall fix

– such time-limits for oral arguments by either party as it thinks fit

Party to appear before other witnesses

Rule 3A

• Where

– a party himself wishes to appear as a witness

• he shall so appear

– before any other witness on his behalf has been examined

• unless

– Court permits him to appear as his own witness at a later stage

Recording of evidence: examination-in-chief

Rule 4(1) [wef 1.7.2002]

• In every case:

• 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:

Proviso

• Where documents are filed and parties rely upon documents

• proof and admissibility

– of such documents which are filed along with affidavit

– shall be subject to orders of Court

Recording of evidence: cross-exam and re-exam

Rule 4(2)

• Evidence (cross-exam and re-exam)

– of the witness in attendance

• whose evidence (exam-in-chief) by affidavit

– has been furnished to the Court

• shall be taken

– either by the Court or by the Commissioner appointed by it:

Recording of evidence

Rule 4(3)

• The Court or Commissioner

• shall record evidence

– either in writing or mechanically

– in the presence of the Judge or Commissioner

Panel of Commissioners

Rule 4(6)

• The High Court or District Judge

– shall prepare a panel of Commissioners

– to record evidence under this rule

📝 Explanatory Notes by DLA

Interpretation of Rule 4(1):

• Reading Order 16 and 18 together, it appears to us that Order 18 Rule 4 will necessarily apply to a case contemplated by Order 16 Rule 1-A, i.e. where any party to a suit brings any witness to give evidence or produce any document without applying for summons under Rule 1.

• In such a case, examination-in-chief is not to be recorded in Court but shall be in the form of an affidavit.

• In cases where summons have to be issued under Order 16 Rule 1, the stringent provision of Order 18 Rule 4 may not apply.

• When summons are issued, Court can give an option to the witness either to file an affidavit by way of examination-in-chief or to be present in Court for his examination.

• With regard to summoned witnesses, the principle incorporated in Order 18, Rule 4 can be waived.

• Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case.

Interpretation of Rule 4(2):

• Order 18 Rule 4(2) gives the Court the power to decide as to whether evidence of a witness shall be taken by the Court or by the Commissioner.

• Under this sub-rule, Court has the power to direct either all the evidence being recorded in Court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the Court.

• For example, if the plaintiff wants to examine 10 witnesses, then the Court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of other five witnesses evidence will be recorded in Court.

Interpretation of Rule 4(3):

• Use of word ‘mechanically’ indicates that the evidence can be recorded even with the help of electronic media, audio or audio-visual.

• Whenever evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witness so as to obviate any controversy at a later stage.

Authority: Salem Advocates Bar Assn v. Union of India [2003 SC]

Court may recall and examine witness

Rule 17

• Court

– may recall at any stage of a suit any witness who has been examined and

– may put such questions to him as the Court thinks fit

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❓ Frequently Asked Questions – CPC Order XVIII