Code of Civil Procedure, 1908 (CPC)
Order XVIII CPC: Hearing of the Suit and Examination of Witnesses
The trial is where the issues framed under Order XIV are answered on evidence. Order XVIII of the Code of Civil Procedure, 1908 governs it: who has the right to begin, how a case is opened, how evidence is given and recorded, the roles of examination-in-chief, cross-examination and re-examination, the use of Commissioners to record evidence, the court's power to recall a witness, and the place of written and oral arguments. The Order was substantially recast by the 1999 and 2002 amendments, and these notes cover it as it now stands.
The four stages of the hearing under Order XVIII
1. The Right to Begin: Rules 1 and 2
§ Order XVIII Rule 1, CPC 1908 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. |
The rule follows from the burden of proof: the party who would fail if no evidence were given must begin. Ordinarily that is the plaintiff, who must establish the facts constituting his cause of action. The exception arises where the defendant admits the plaintiff's facts and rests his defence on law or on additional facts of his own, for then the plaintiff has nothing to prove and the burden of the additional case lies on the defendant. Rule 2 then sets out the sequence: the party having the right to begin states his case and produces his evidence on the issues he must prove; the other party then states his case and produces his evidence, and may address the court generally on the whole case; and the party beginning may reply.
Written and oral arguments
Rule 2(3A), inserted in 2002, provides that any party may address oral arguments in a case, and shall, before concluding the oral arguments, if any, submit a memorandum in writing stating concisely and under distinct headings the arguments advanced, and such memorandum forms part of the record. Rule 2(3B) requires a copy to be furnished simultaneously to the opposite party, Rule 2(3C) provides that 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, and Rule 2(3D) empowers the court to fix time limits for oral arguments. Together these are the Code's answer to arguments that expand to fill whatever time is available.
2. Evidence: Examination-in-Chief on Affidavit
§ Order XVIII Rule 4, CPC 1908 (in substance) (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. (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. (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, and where such evidence is recorded by the Commissioner he shall return it to the Court with his report in writing. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination. |
This is the most consequential change the 2002 amendment made to the trial. Before it, the whole of a witness's chief examination was dictated to the judge in open court, which consumed the bulk of trial time. Now the chief is filed on affidavit, and the witness is produced for cross-examination, which may itself be taken before a Commissioner appointed by the court. Two points recur in practice. The affidavit must confine itself to matters the witness can depose to and to the issues framed; evidence on a case not pleaded is inadmissible however it is filed. And the objections to the affidavit, on relevance or admissibility, are decided by the court, since Rule 4(2) leaves the Commissioner to record and report rather than to rule finally on admissibility, subject to the directions the court gives under Order XXVI.
3. Recording of Evidence: Rules 5 to 13
Rule | What it provides |
|---|---|
Rule 5 | In appealable cases, the evidence of each witness shall be taken down in the language of the court in writing by or in the presence and under the personal direction and superintendence of the judge, or from his dictation directly on a typewriter, or, if he is unable to do so, in his presence by an officer appointed by him |
Rule 6 | Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand that language, it shall be interpreted to him in the language in which it was given |
Rule 7 | Evidence taken down under Rule 5 shall be in the form of a narrative, but the judge may in his discretion take down, or cause to be taken down, any particular question and answer |
Rule 8 | In non-appealable cases, it is not necessary to take down the evidence at length, but the judge shall make a memorandum of the substance of what each witness deposes, sign it, and make it part of the record |
Rule 12 | The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination |
Rule 13 | In non-appealable cases where evidence is not taken down at length, the judge shall make a memorandum of the substance of the evidence, which forms part of the record |
§ Why demeanour remarks matter Under Rule 12, the judge may record remarks on the demeanour of a witness. The provision exists because demeanour is the one element of oral evidence an appellate court cannot recover from the record. The consequence is a settled rule of appellate practice: where the trial court's finding rests on the credibility of witnesses it saw, an appellate court will interfere with caution, and recorded remarks on demeanour carry weight; where the finding rests on documents or inferences, the appellate court is in as good a position as the trial court. |
4. Recall of a Witness: Rule 17
§ Order XVIII Rule 17, CPC 1908 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. |
📖 Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 An application under Order XVIII Rule 17 was made after the party's evidence had closed, in substance to fill gaps in that party's case. The Supreme Court held that Rule 17 is not intended to be used to fill up omissions in the evidence of a witness already examined. The power is one for the court to exercise, at any stage, to clarify doubts of its own, or to clear ambiguity in the evidence already recorded; it is not a right of a party to reopen his evidence and lead further proof. Where a party genuinely needs to lead additional evidence, the appropriate course is an application invoking the court's general powers, considered on its own merits and subject to the discipline against belated evidence. Rule: Rule 17 is the court's power to clarify, not a party's route to a second innings. This is the standard answer to any question on recall of witnesses. |
Two related provisions complete the picture. Rule 3A, inserted in 1976, provides that 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 recorded, permits otherwise; the rule prevents a party from shaping his own evidence after hearing his witnesses. And Rule 16 allows the court, where a witness is about to leave the jurisdiction, or where other sufficient cause is shown, to take his evidence immediately, even before the suit reaches the stage of evidence.
5. Closing Evidence and Additional Evidence
i. Closing the evidence. When a party has led such evidence as he intends to, he closes his case, and the court proceeds to the other side. Once evidence is closed, a party cannot as of right reopen it; he must apply, and the application is judged on whether the evidence is necessary for a just decision, whether the party could have led it earlier with due diligence, and what prejudice reopening would cause.
ii. The discipline against belated evidence. The same policy that produced the due diligence proviso in Order VI Rule 17 and the time limits in Order VIII Rule 1 governs here: the court leans against evidence that could have been led in time, and Vadiraj Naggappa Vernekar confirms that Rule 17 is not the vehicle for it.
iii. Additional evidence in appeal. Where evidence was genuinely unavailable at the trial, the route is Order XLI Rule 27, under which an appellate court may allow additional evidence where the trial court refused to admit evidence that ought to have been admitted, where the party shows that despite due diligence the evidence was not within his knowledge or could not be produced, or where the appellate court itself requires it to pronounce judgment.
6. The Sequence in Summary
Stage | Provision | What happens |
|---|---|---|
Right to begin | Rule 1 | The plaintiff begins, unless the defendant admits the plaintiff's facts and relies on law or additional facts |
Opening and evidence of the party beginning | Rule 2(1) | He states his case and produces his evidence on the issues he must prove |
Party's own testimony | Rule 3A | A party who wishes to appear as a witness must do so before his other witnesses, unless the court permits otherwise for recorded reasons |
Examination-in-chief | Rule 4(1) | On affidavit in every case, with copies supplied to the opposite party |
Cross-examination and re-examination | Rule 4(2) | Taken by the court, or by a Commissioner appointed by it, who records and reports |
Recording | Rules 5 to 13 | In appealable cases the substance is recorded under the judge's direction; remarks on demeanour may be recorded under Rule 12 |
Recall | Rule 17 | The court may at any stage recall a witness and put such questions as it thinks fit, to clarify its own doubts |
Arguments | Rules 2(3A) to 2(3D) | Written arguments before oral arguments conclude, copies to the other side, and time limits for oral argument |
7. Landmark Judgments on Order XVIII
- Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410. Order XVIII Rule 17 is the court's power to clarify, not a party's route to fill gaps in his evidence.
- Salem Advocate Bar Association v. Union of India (II), (2005) 6 SCC 344. The amended Rule 4 on affidavit evidence and Commissioners upheld and its working explained, including the court's control over objections.
- Order XVIII Rule 3A. A party wishing to appear as a witness must do so before his other witnesses, unless the court permits otherwise for reasons recorded.
- Order XLI Rule 27. The route for additional evidence genuinely unavailable at the trial is the appellate court, on the conditions that rule prescribes.
8. Frequently Asked Questions on Order XVIII
Who has the right to begin in a civil trial?
The plaintiff, under Order XVIII Rule 1, unless the defendant admits the facts alleged by the plaintiff and contends that in point of law, or on additional facts alleged by him, the plaintiff is not entitled to any part of the relief. In that case the defendant begins.
Is examination-in-chief given orally?
No. Since the 2002 amendment, Order XVIII Rule 4(1) requires the examination-in-chief of a witness to be on affidavit in every case, with copies supplied to the opposite party. Cross-examination and re-examination are then taken by the court or by a Commissioner it appoints.
Can evidence be recorded by a Commissioner?
Yes. Under Order XVIII Rule 4(2) the cross-examination and re-examination of a witness whose affidavit of chief examination has been filed may be taken by a Commissioner appointed by the court, who records the evidence and returns it with his report, and may record remarks on the witness's demeanour.
What is the scope of Order XVIII Rule 17?
It allows the court at any stage of a suit to recall a witness already examined and put such questions to him as the court thinks fit. Vadiraj Naggappa Vernekar holds that it is a power for the court to clear its own doubts and is not intended to let a party fill gaps in his evidence.
Must a party give evidence before his own witnesses?
Yes, ordinarily. Order XVIII Rule 3A provides that a party who wishes to appear as a witness 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 later.
Are written arguments compulsory?
Under Order XVIII Rule 2(3A), a party addressing oral arguments shall, before concluding them, submit a memorandum in writing stating concisely and under distinct headings the arguments advanced, which becomes part of the record, with a copy furnished simultaneously to the other side.
Can additional evidence be led after evidence is closed?
Not as of right. A party must apply, and the court considers whether the evidence is necessary for a just decision, whether it could have been led earlier with due diligence, and the prejudice to the other side. Where the evidence was genuinely unavailable at the trial, the route is Order XLI Rule 27 before the appellate court.
9. Related Topics in This CPC Series
- Order XIX: Affidavits
- Orders XVI and XVI-A: Summoning and Attendance of Witnesses
- Order XVII: Adjournments and the Three-Adjournment Rule
- Order XIV: Settlement of Issues and Preliminary Issues