Trial, Witnesses and Evidence
Chapter Twenty-One
Syllabus topic 2.6, "Trial, Summons, Hearing of suit, evidence, judgment and decree and costs"
Pages 118 to 122 of 365
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.
Trial, Witnesses and Evidence
Rules 10, 11 and 12 are the sanctions where a summoned witness does not appear: the Court may issue a proclamation requiring his attendance, and may issue a warrant for his arrest, attach and sell his property, or impose a fine, subject to the safeguards those rules contain.
Rule 14 allows the Court, of its own motion, to summon as a witness any person whose evidence appears to it to be necessary, and to examine him as a witness.
Order XVII: adjournments
This Order was tightened deliberately, and its restrictions are the examinable part.
Rule 1(1): the Court may, if sufficient cause is shown, at any stage grant time to the parties and adjourn the hearing, for reasons to be recorded in writing. Proviso: no such adjournment shall be granted more than three times to a party during the hearing of the suit.
Rule 1(2): the Court shall fix a day for further hearing and shall make such orders as to the costs occasioned by the adjournment, or such higher costs as it deems fit.
The proviso to Rule 1(2) then sets out five conditions, and they are worth learning as a list:
(a) once the hearing has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court records exceptional reasons for adjourning beyond the following day (b) no adjournment at the request of a party except where the circumstances are beyond that party's control (c) the fact that a party's pleader is engaged in another Court shall not be a ground for adjournment (d) where the illness or inability of a pleader is put forward, other than his being engaged elsewhere, the Court shall not adjourn unless satisfied that the party could not have engaged another pleader in time (e) where a witness is present but a party or his pleader is not, or is present but not ready to examine or cross-examine him, the Court may record the witness's statement and pass such orders as it thinks fit
Rule 2: where the parties or any of them fail to appear on a day to which the hearing is adjourned, the Court may dispose of the suit in one of the modes directed by Order IX, or make such other order as it thinks fit. That is the bridge to [Appearance and Consequences of Non-appearance].
Rule 3: where a party to whom time was granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time was allowed, the Court may proceed to decide the suit forthwith, notwithstanding that failure.
Trial, Witnesses and Evidence
Order XVIII: how evidence is recorded
Rule 4(1): in every case, the examination-in-chief of a witness shall be on affidavit, copies being supplied to the opposite party by the party calling him. The proviso adds that where documents are filed and relied on, their proof and admissibility are subject to the orders of the Court.
That single rule changed the shape of civil trials. Examination-in-chief is now a document, not an occasion, and court time is spent on cross-examination.
Rule 4(2): the cross-examination and re-examination of a witness whose examination-in-chief has been furnished by affidavit shall be taken either by the Court or by a Commissioner appointed by it.
For commercial disputes the Code adds a stricter regime: affidavits of evidence of all witnesses are to be filed simultaneously at the time directed at the first case management hearing; no additional evidence by affidavit without sufficient cause shown and a reasoned order; and a party may withdraw an affidavit before cross-examination of that witness begins without adverse inference, though any admission in the withdrawn affidavit may still be tendered and relied on by the other side.
Rule 5 requires evidence in appealable cases to be taken down in the language of the Court in the form of a narrative, and read over and signed. Rule 17 allows the Court at any stage of a suit to recall any witness and put such questions to him as it thinks fit.
A worked example
Om sues Preeti. Issues are settled on 10 June.
When must the witness list go in? Not later than fifteen days after the settlement of issues, so by 25 June, with an application stating the purpose for each witness and a deposit for expenses under Rule 2. Summonses may be obtained within five days of presenting the list.
Om forgets a witness. Rule 1(3): the Court may permit him to call a witness not in the list, for reasons recorded, if he shows sufficient cause for the omission. And under Rule 1A he may in any event simply bring a willing witness without a summons.
A summoned witness does not turn up. Rules 10 to 12 allow a proclamation, and then a warrant, attachment and sale of property, or a fine.
Who begins? Om, unless Preeti admits his facts and says he is still not entitled to relief, in which case she begins under Rule 1.
How is the evidence given? Om's witnesses give their examination-in-chief on affidavit under Rule 4(1), with copies to Preeti. Their cross-examination is taken by the Court or by a Commissioner under Rule 4(2).
Trial, Witnesses and Evidence
Preeti's counsel is busy in another court and asks for an adjournment. Clause (c) of the proviso to Rule 1(2): that is not a ground. If he is ill, clause (d) applies, and the Court must be satisfied she could not have engaged another pleader in time.
She has already had three adjournments. The proviso to Rule 1(1) forbids more than three to a party during the hearing.
Om's witness is present but Om's pleader is absent. Clause (e): the Court may record the witness's statement and pass such orders as it thinks fit, rather than waste the witness's attendance.
Preeti was given time to produce her evidence and produces none. Rule 3: the Court may decide the suit forthwith notwithstanding that failure.
Neither party appears on the adjourned date. Rule 2: the Court may dispose of the suit in one of the modes directed by Order IX.
What it does not mean
The plaintiff does not always begin. Where the defendant admits the facts and raises a point of law or additional facts, he begins.
A party is not confined to summonsed witnesses. Rule 1A allows a witness to be brought without any summons.
An adjournment is not available on request. Sufficient cause, reasons recorded, a maximum of three to a party, and none for a pleader being engaged elsewhere.
Examination-in-chief is no longer oral. Rule 4(1) requires it on affidavit; the oral part is cross-examination and re-examination.
Withdrawing an affidavit in a commercial dispute does not erase it. Any admission in it may still be tendered by the other side.
Quick revision
Order XVI: witness list within fifteen days of the settlement of issues, with the purpose stated and expenses deposited; summonses within five days of the list; a witness not in the list only for reasons recorded on sufficient cause, Rule 1(3); but under Rule 1A a party may bring any witness without a summons; proclamation, warrant, attachment or fine for non-attendance, Rules 10 to 12; the Court may summon a witness of its own motion, Rule 14.
Order XVII: adjournment only on sufficient cause, for reasons recorded, and not more than three times to a party. Hearing to continue day to day once commenced; no adjournment at a party's request unless circumstances are beyond his control; a pleader engaged elsewhere is not a ground; illness of a pleader only where another could not have been engaged in time; where a witness is present and the party is not, his statement may be recorded. Rule 2: failure to appear, dispose of under Order IX. Rule 3: failure to produce evidence, decide the suit forthwith.
Trial, Witnesses and Evidence
Order XVIII: the plaintiff begins, unless the defendant admits the facts and relies on law or additional facts, Rule 1; state the case and produce evidence, then the other party, then a reply, Rule 2; examination-in-chief on affidavit, cross-examination and re-examination by the Court or a Commissioner, Rule 4; the Court may recall any witness at any stage, Rule 17.
Test yourself
1. Who has the right to begin? The plaintiff, under Order XVIII Rule 1, 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 sought, in which case the defendant begins.
2. Within what time must a list of witnesses be filed? On or before such date as the Court appoints, and in any event not later than fifteen days after the date on which the issues are settled, under Order XVI Rule 1(1). Summonses may be obtained within five days of presenting the list.
3. Can a party examine a witness whose name is not in the list? Yes, in two ways. The Court may permit it for reasons recorded, if sufficient cause is shown for the omission, under Rule 1(3). And under Rule 1A a party may without applying for a summons simply bring any witness to give evidence or produce documents.
4. How many adjournments may a party obtain? Not more than three during the hearing of the suit, under the proviso to Order XVII Rule 1(1), and each only on sufficient cause shown and for reasons recorded in writing.
5. Is the engagement of a pleader in another court a ground for adjournment? No. Clause (c) of the proviso to Order XVII Rule 1(2) states expressly that it shall not be a ground. Where the pleader's illness or inability is relied on instead, the Court shall not adjourn unless satisfied that the party could not have engaged another pleader in time.
6. How is the examination-in-chief of a witness recorded? On affidavit, under Order XVIII Rule 4(1), copies being supplied to the opposite party by the party calling the witness. The cross-examination and re-examination are then taken either by the Court or by a Commissioner appointed by it.
7. A party given time fails to produce his evidence. What may the Court do? Under Order XVII Rule 3 the Court may proceed to decide the suit forthwith, notwithstanding that failure.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.