Order XVIII Rule 4 of the Civil Procedure Code provides for the mode of recording the evidence. The said provision reads as follows:
“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 commission under this rule.”
Evidence in Appealable Cases
As to how the evidence is to be taken in appealable cases is provided in Rule 5 of Order XVIII of the Code. This provision reads as follows:
“5. 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.”
Purpose and Object
The purpose and objective of Rule 4 of Order XVIII of the Code is speedy trial of the case and to save precious time of the court as the examination-in-chief of a witness is now mandated to be made on affidavit with a copy thereof to be supplied to the opposite party.
The provision makes it clear that cross-examination and re- examination of witness shall be taken either by the court or by Commissioner appointed by it. Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court.
In a case in which appeal is allowed, Rule 5 of Order XVIII provides that the evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Judge or from the dictation of the Judge directly on a typewriter or recorded mechanically in the presence of the Judge if the Judge so directs for reasons to be recorded in writing.
Amendment to these Rules
It is also relevant to mention that Rule 5 of Order XVIII was substituted by Act 104 of 1976 with effect from February 1, 1977.
Order XVIII Rule 4 of the Code was substituted by a later Act, namely, Act No. 22 of 2002 with effect from July 1, 2002.
Rule 4 Order XVIII begins with the expression, “in every case” and says that 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.
Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd (2003)
The above provisions, namely, Order XVIII Rule 4 and Order XVIII Rule 5 of the Code came up for consideration before this Court in the case of Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd (2003).
The interpretation of Order XVIII Rule 4 and Rule 5 of the Code fell for consideration in that case. In paragraph 15 of the Report, the Court stated, “The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order XVIII speaks of examination-in-chief. ……Such examination-in-chief of a witness in every case shall be on affidavit”.
The Court then stated in paragraph 17 that Rule 4 of Order XVIII, as amended with effect from July 1, 2002 specifically provides that the examination-in-chief in every case shall be on affidavit. It was noticed by the Court that Rule 5 of Order XVIII has been incorporated prior to the amendment in Rule 4. Noticing the difference between Rule 4 and Rule 5 of Order XVIII, the Court said that Rule 4 of Order XVIII did not make any distinction between appealable and non-appealable cases so far as mode of recording evidence is concerned.
Then, in paragraph 19 of the Report, the Court observed as under: “19. It, therefore, appears that whereas under the unamended rule, the entire evidence was required to be adduced in court, now the examination-in-chief of a witness including the party to a suit is to be tendered on affidavit. The expression “in every case” is significant. What thus remains viz. cross-examination or re-examination in the appealable cases will have to be considered in the manner laid down in the rules, subject to the other sub-rules of Rule 4.”
The Court applied Heydon’s Rule as well as the principles of purposive construction and stated,
(i) the amendment having been made in Rule 4 of Order XVIII of the Code by the Parliament later, the said provision must be given full effect and
(ii) the two provisions must be construed harmoniously. In paragraph 33 of the Report, the Court stated as follows:
“33. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross- examining him.
The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the court would not be wasted in examining such witness in open court.”
In ‘Rasiklal Manikchand Dhariwal v. M.S.M.S.S. Food Products Ltd. (2011)’, The court said that, “Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the Notary or Judicial Officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already. In our view, there is no requirement in Order XVIII Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit.
As it is such witness is required to enter the witness box in his cross-examination and, if necessary, re-examination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless defendant’s right to cross examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence.
The three witnesses whose examination-in-chief was tendered by the plaintiff in the form of affidavits were present for cross-examination but despite the opportunity given to the defendants, they chose not to cross-examine them and thereby the trial court closed the defendants’ right to cross- examine these witnesses. In view of this, it cannot be said that any prejudice has been caused to the defendants if these three witnesses did not enter the witness box.”
Reference
Rasiklal Manikchand Dhariwal v. M.S.M.S.S. Food Products Ltd. (2011)