ORDER XVIII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XVIII . HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

 

1. Right to begin

The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

 

2. 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.

 

1[(3A) 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.

 

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

 

(3C) 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.

 

(3D) The Court shall fix such time limits for the oral arguments by either of the parties in a case, as it thinks fit.”]

 

2[(4) Omitted]

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XVIII, for rule 2, substitute the following rule, namely:-

“2. (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, indicating the relevancy of each of the documents produced by him, and the nature of the oral evidence which he proposes to adduce and shall then call his witnesses in support of the issues which he is bound to prove.

 

(2) The other party shall then state his case in the manner aforesaid and produce his evidence (if any).” (w.e.f. 24-7-1926)

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

Same as in Madras.

 

Karnataka.-

Same as in Madras (w.e.f. 9-2-1967).

 

Madras.-

In Order XVIII, in rule 2, at the end, insert the following Explanation, namely:-

 

“Explanation.-Nothing in this rule shall affect the jurisdiction of the Court for reasons to be recorded in writing to direct any party to examine any witness at any stage.”

 

Orissa.-

In Order XVIII, in rule 2, insert the Explanation as in Madras.

Punjab.-

 

In Order XVIII, in rule 2, insert the Explanation as in Madras as Explanation 1 and after the so renumbered Explanation, insert the following Explanation, namely:-

 

“Explanation 2.-The expression “witness” in Explanation 1 sh
all include any party as his own witness.” (w.e.f. 9-6-1942}

 

Calcutta and Gauhati.-

In Order XVIII, after rule 2, insert the following rule, namely:-

 

“2A. Notwithstanding anything contained in clauses (1) and (2) of Rule 2, the Court may for sufficient reason go on with the hearing although the evidence of the party having the right to begin has both been concluded, and may also allow either party to produce any witness at any stage of the suit.”

 

1. Sub-rules (3A) (3B) (3C) and (3D) inserted by Act No. 22 of 2002, section 12 (w.e.f. 1-7-2002).

 

2. Omitted by Act No. 46 of 1999, section 27 (w.e.f. 1-7-2002).

 

3. Evidence where several issues

 

Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

 

HIGH COURT AMENDMENT

 

Allahabad.-

In Order XVIII, for rule 3, substitute the following rule, namely:-

 

“3. (1) Where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either state his case in the manner aforesaid and produce his evidence on those issues or reserve the statement of his case and the production of his evidence on those issues by way of answer to the evidence produced by the other party; and, in the later case, the party beginning may state his case in the manner aforesaid and produce evidence on those issues after the other party has produced all his evidence.

 

(2) After both parries have produced their evidence, the party beginning may address the Court on the whole case; the other party may then address the Court on the whole case; and the party beginning may reply generally on the whole case, provided that in doing so he shall not, without the leave of the Court, raise questions which should have been raised in the opening address.”

 

[Vide Notification No. 3837/35 (a)-2(l), dated 20th June, 1936.]

 

1[3A. Party to appear before other witnesses

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 the Court, for reasons to be recorded permits him to appear as his own witness at a later stage.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f.1-2-1977).

 

1[4. 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 commissions under this rule.]

 

1. Rule 4 which was substituted by Act No. 46 of 1999, section 27 has now again been substituted by Act No. 22 of 2002, section 12 (w.e.f. 1-7-2002).

 

1[25. How evidence shall be taken in appealable cases

In cases 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.]

 

1. Subs, by Act No. 104 of 1976, for the former rule 5 (w.e.f. 1-2-1977).

 

2. The provisions of rules, 5,6,7, 8,9,11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).

 

16. When deposition to be interpreted

Where the evidence is taken down in 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 as taken down in writing shall be interpreted to him in the language in which it is given.

 

1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

 

17. Evidence under Section 138.

Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule.

 

1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as
they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).

 

18. Memorandum when evidence not taken down by Judge

Where the evidence is not taken down in writing by the Judge, 2[or from his dictation in the open Court, or recorded mechanically in his presence,] he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XVIII, in rule 8,-

(a) after the words “in writing by the Judge”, insert the words “or from his dictation”;

 

(b) for the words “and signed by the Judge”, substitute the words “by the Judge or typed to dictation, shall be signed by him”.

 

[Vide Notification No. 92/X-4, dated 19th May, 1956.]

 

Bombay.-

In Order XVIII, for rule 8, substitute the following rule, namely:-

 

“8. Memorandum when evidence not taken down by Judge.-

Where the evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes and such memorandum shall be written or dictated and signed by the Judge and shall form part of the record.

 

Exception.-However in matters outside Greater Bombay, the State of Goa and the Union Territories of Daman and Diu and Dadra and Nagar Haveli and from which there is no first appeal to the High Court the depositions given by the witnesses shall be recorded only in Marathi or in English where the witness deposes in English. In such matter it is not necessary to maintain memorandum as mentioned in the rule.”

 

[Vide Maharashtra Notification No. P.O. 102/77, dated 31st December, 1987.]

 

Calcutta.-

In Order XVIII, omit rule 8. (w.e.f. 6-7-1967)

 

Madhya Pradesh.-

In Order XVIII, in rule 8, between the words “Judge” and “comma,” insert the words “or at his dictation in open Court”, {w.e.f. 27-7-1956)

 

Punjab and Haryana.-

In Order XVIII, in rule 8,-

 

(i) between the words “in writing by the Judge” and “he shall be bound” insert the words “or from his dictation” .

 

(ii) for the words “and signed by the Judge”, substitute the words “by the Judge typed to has dictation, shall be signed by him”.

 

1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

1[29. When evidence may be taken in English

(1) 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.

 

(2) 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 bei
ng taken down in English, the Judge may take down, or cause to be taken down, such evidence in English.]

 

1. Subs, by Act No. 104 of 1976 for rule 9 (w.e.f. 1-2-1977).

 

2. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).

 

10. Any particular question and answer may be taken down

 

The Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing.

 

HIGH COURT AMENDMENT

 

Calcutta.-

In Order XVIII, in rule 10, after the words “take down” insert the words, “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

 

111. Questions objected to and allowed by Court

Where any question put to 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.

 

HIGH COURT AMENDMENT

 

Calcutta.-

In Order XVIII, in rule 11, after the words “take down”, insert the words “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

 

1. The provisions of rules, 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).

 

12. Remarks on demeanour of witnesses

The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

 

HIGH COURT AMENDMENT

 

Calcutta.-

In Order XVIII, in rule 12, at the end, insert the following words, namely:- “or cause the same to he recorded under his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

 

1[2[13. Memorandum of evidence in unappealable cases

In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.]

 

HIGH COURT AMENDMENT

 

Bombay.-

In Order XVIII, for rule 13, substitute the following rule, namely:-

“13. Memorandum of evidence in unappealable cases.-

 

In cases in which an appeal in not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of substance of what the witness deposes and such memorandum shall be signed by
the Judge or otherwise authenticated, and shall form part of the record. However, such memorandum outside Greater Bombay, the State of Goa and the Union Territories of Daman and Diu and Dadra and Nagar Haveli shall be in Marathi or in English wherever the witnesses depose in English.”

 

[Vide Maharashtra Notification No. P.O. 102/77, dated 31st December, 1978.] 14. Judge unable to make such memorandum to record reasons of his inability.-[Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), sec. 69 (w.e.f. 1-2-1977).]

 

1. Subs, by Act No. 104 of 1976, for the former rule (w.e.f. 1-2-1977).

 

2. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

 

114. [Judge unable to make such memorandum to record reasons of his liability.]

 

Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 69 (w.e.f. 1-2-1977).

 

1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

 

115. Power to deal with evidence taken before another Judge

(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

 

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.

 

1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

 

116. Power to examine witness immediately

(1) 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 witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided.

 

(2) 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.

 

(3) 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.

 

1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

 

17. Court may recall and examine witness

The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

 

1[17A. Omitted.]

 

1. Omitted by Act No. 46 of 1999, section 27 (w.e.f. 1-7-2002).

 

18. Power of Court to inspect

The Court may at any stage of a suit inspect any property or thing concerning which any question may arise 1[and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit.]

 

HIGH COURT AMENDMENT

Allahabad.-

In Order XVIII, after rule 18, insert the following rule, namely:-

 

“19. (1) The Judge shall record in his own hand in English all orders passed on applications, other than orders of a purely routine character.

 

(2) The Judge shall record in his own hand in English all admissions and denials of documents, and the English proceedings shall show how all documents tendered in evidence have been dealt with from the date of presentation down to the final order admitting them in evidence or rejecting them.

 

(3) The Judge shall record the issues in his own hand in English, and the issues shall be signed by the Judge and shall form part of the English proceedings.”

 

[Vide Notification No. 794/35 (a), dated 17th March, 1923.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

1[19. Power to get statements recorded on commission

Notwithstanding anything contained in these rules, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under rule 4A of Order XXVI].

 

1. Added by Act No. 46 of 1999, section 27 (w.e.f 1-7-2002).

 

 

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