Trial, Witnesses and Evidence

In one line

Three Orders run the trial: Order XVI brings the witnesses, Order XVII controls adjournments, and Order XVIII governs the order in which the parties present their cases and how evidence is recorded.

Who begins, and in what order

Order XVIII Rule 1: 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 him, the plaintiff is not entitled to any part of the relief he seeks, in which case the defendant has the right to begin.

The principle behind it is that the party on whom the burden lies opens. Where the defendant admits the plaintiff's facts and says "so what", there is nothing for the plaintiff to prove and the burden has moved.

Rule 2(1): on the day fixed for the hearing, the party having the right to begin shall state his case and produce his evidence in support of the issues he is bound to prove.

Rule 2(2): the other party shall then state his case and produce his evidence, and may then address the Court generally on the whole case.

Rule 2(3): the party beginning may then reply.

That is the shape of a civil trial in three sub-rules, and it is worth reproducing in an answer exactly in that order.

Order XVI: summoning witnesses

Rule 1(1): on or before such date as the Court appoints, and not later than fifteen days after the issues are settled, the parties shall present in Court a list of witnesses they propose to call to give evidence or produce documents, and obtain summonses for their attendance.

Rule 1(2): a party seeking a summons shall file an application stating the purpose for which the witness is proposed to be summoned.

Rule 1(3): the Court may, for reasons to be recorded, permit a party to call a witness not named in the list, if that party shows sufficient cause for the omission.

Rule 1(4): summonses may be obtained on application within five days of presenting the list.

Rule 1A is the practical escape hatch: subject to Rule 1(3), any party may, without applying for a summons, simply bring any witness to give evidence or produce documents. A party who can persuade his witness to attend does not need the Court's process at all.

Rule 2 requires the party applying for a summons to deposit a sum sufficient to defray the witness's travelling and other expenses. Rule 6 allows a person summoned merely to produce a document to comply by causing it to be produced instead of attending personally.