Explain the provisions relating to examination of witnesses

Examination of Witnesses in a Civil Suit

The examination of witnesses is the centrepiece of a civil trial. It is at this stage that the parties breathe life into the pleadings — the abstract assertions of fact, which until now existed only on paper, must be established through the testimony of living witnesses and the proof of documents. The law governing this process is contained primarily in Order XVIII of the Code of Civil Procedure — the Order titled "Hearing of the Suit and Examination of Witnesses" — supplemented by Order XVI on summoning of witnesses, Order X on the preliminary examination of parties, and Order XIX on affidavits.

Order X: Examination of Parties by the Court

Before witnesses are formally examined at the hearing of the suit, the Code prescribes an important preliminary step under Order X, Rule 1. At the first hearing, the court is required to ascertain from each party, or his pleader, whether the allegations of fact made in the pleadings of the opposite party are admitted or denied. The court records these admissions and denials. This is not the taking of evidence — it is a housekeeping exercise designed to narrow the controversy before the trial proper begins.

The distinction between Rule 1 and Rule 2 of Order X is instructive. Under Rule 1, the inquiry is confined to the allegations in the pleadings; under Rule 2, the court may go further and orally examine any party appearing in person on any material question relating to the suit, and even any person accompanying the party who is able to answer such a question. The object of examination under Rule 2 is to elucidation matters in controversy — it is not the taking of sworn testimony and cannot be treated as a substitute for a party's regular examination on oath under Order XVIII. As the Supreme Court observed in Kapil Corepacks Pvt. Ltd. v. Harbans Lal (AIR 2010 SC 2809), the power under Order X, Rule 2 cannot be converted into a process of selective cross-examination by the court before the party has had an opportunity to put forth his case at the trial.

A significant consequence follows if a pleader refuses or is unable to answer a material question: under Order X, Rule 4, the court may postpone the hearing to a date not later than seven days from the date of the first hearing — the 1999 Amendment introduced this outer time limit — and direct the party to appear in person. If that party fails without lawful excuse to appear, the court may pronounce judgment against him or make such other order as it deems fit.

The Right to Begin: Order XVIII, Rule 1

The general rule of a civil trial is that the plaintiff begins. The plaintiff has made the claim; it is for him to prove it. Under Order XVIII, Rule 1, the plaintiff has the right to begin, unless the defendant admits all the plaintiff's facts but contends that the plaintiff is not entitled to relief in law, or upon some additional facts alleged by the defendant. In that limited situation, the defendant has the right to begin.

Where the defendant takes a preliminary objection — such as a plea of res judicata — it is the defendant who has the right to begin, since he must first establish that the suit does not lie at all. The expression "right to begin" under Rule 1 is not a privilege that can be waived at will; it is a provision that identifies which party must lead the evidence first, and it operates imperatively where its conditions are satisfied.

Examination-in-Chief, Cross-Examination, and Re-Examination

The sequence of examination of witnesses is governed by the general scheme of Order XVIII, Rule 2. The party who has the right to begin states his case and produces his evidence in support of the issues which he is bound to prove. The other party then states his case and produces his evidence. The party who began may then reply generally on the whole case.

The examination of a witness proceeds in three stages, each serving a distinct purpose:

Examination-in-chief is the first examination of a witness by the party who calls him. It is the witness's opportunity to narrate the facts within his knowledge that support the case of the party calling him. In every case, under Order XVIII, Rule 4(1) as amended by the 2002 Amendment Act, the examination-in-chief of every witness is required to be given by affidavit, and copies of that affidavit must be supplied to the opposite party. The legislative object was to save court time: rather than taking down the narrative testimony of the witness orally in open court, the examination-in-chief is pre-filed in writing, so that the court's time at the hearing is devoted to what matters most — the cross-examination and re-examination of the witness. Where a party calls a witness but fails to tender him for cross-examination, the court will generally refuse to rely on his affidavit, since no party can, as a matter of right, insist on his evidence being accepted in the absence of cross-examination.

Cross-examination is the examination of a witness by the adverse party. It is the great engine of the adversarial system. Its objects are threefold: to weaken, qualify, or destroy the testimony of the witness; to elicit facts favourable to the cross-examiner; and to challenge the credibility of the witness. The evidence by way of cross-examination and re-examination of the witness is taken either by the Court or by a Commissioner appointed by it from the panel prepared by the High Court or the District Judge. The court may, while appointing such a commissioner, take into account all relevant factors. In suits tried by the High Court, the evidence is ordinarily recorded by the Commissioner unless the court directs otherwise. The Commissioner may record remarks regarding the demeanour of the witness while under examination — a valuable tool since demeanour often speaks as eloquently as words — and any objection raised during evidence before the Commissioner is recorded by him but decided by the court at the stage of arguments.

Re-examination follows cross-examination and is conducted by the party who originally called the witness. Its proper purpose is to explain or clarify matters that arose out of the cross-examination; it is not a second innings for the party to produce evidence that should have been given in the examination-in-chief.

A Party as Witness: Order XVIII, Rule 3-A

A party who wishes to be a witness in his own case occupies a special procedural position. Under Order XVIII, Rule 3-A, inserted by the 1976 Amendment Act, a party who wishes to appear as a witness must do so before any other witness on his behalf is examined. He cannot hear his other witnesses and then tailor his own testimony accordingly. The court may, for reasons recorded in writing, permit a party to appear as his own witness at a later stage — but this is an exception, and a considered one at that. The spirit of this rule reflects a salutary principle: a party who gives testimony must do so honestly, not as the final piece of a carefully orchestrated narrative.

Evidence Where Several Issues Exist: Order XVIII, Rule 3

Where there are several issues in a suit and the burden of proving some of them lies on the other party, the party beginning has a choice under Order XVIII, Rule 3: he may either produce evidence on those issues at the outset, or reserve it as a rebuttal after the other party has produced all his evidence. If he reserves it, the other party may reply specially on the evidence so produced by the party beginning, and the party beginning may then reply generally on the whole case. This provision is a thoughtful accommodation of the reality that in multi-issue suits, a rigid linear sequence of evidence-giving would be inefficient.

Recording of Evidence: Form and Manner

The Code provides carefully for how evidence must be recorded. In appealable cases, Order XVIII, Rule 5 requires that the evidence of each witness be taken down in the language of the court — either in writing by the judge or from his dictation directly on a typewriter, or recorded mechanically in the presence of the judge. Where a commissioner records the evidence, he records it either in writing or mechanically in his presence, signs the record, and returns it to the court along with his report, within sixty days from the date of issue of the commission unless the court, for reasons recorded in writing, extends the time.

Where the evidence is not taken down in writing by the judge directly, Rule 8 requires the judge to make a memorandum of the substance of each witness's deposition as the examination proceeds; this memorandum must be signed by the judge and forms part of the record. The court also has the power under Rule 12 to record its remarks on the demeanour of any witness while under examination — a power exercised where the bearing, hesitation, or confidence of the witness is material to the assessment of his credibility.

Immediate Examination: Order XVIII, Rule 16

The Code contemplates one situation of urgency with special care. Where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown why his evidence should be taken immediately, the court may take that evidence at any time after the institution of the suit, even before the regular hearing begins. This is a salutary power, designed to prevent the loss of crucial testimony through the accident of a witness's departure or illness. The evidence so taken is read over to the witness, signed by him if correct, and may thereafter be read at any hearing of the suit. It is important to note that mere old age, without any serious ailment or imminent incapacity, has been held not to be sufficient cause for invoking this provision.

Recalling of Witnesses: Order XVIII, Rule 17

The court is not powerless once a witness has completed his examination. Under Order XVIII, Rule 17, the court may at any stage recall any witness who has been examined and put such questions to him as the court thinks fit, subject to the law of evidence. However, the Supreme Court has cautioned — in Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate (AIR 2009 SC 1604) — that this power must be exercised sparingly and in appropriate cases; it is not to be used as a matter of routine merely on the ground that recall will cause no prejudice. The purpose of recall is to clarify any genuine ambiguity or confusion that has arisen from the existing evidence — not to fill up the lacuna in a party's case or to allow a party a second chance to prove what he failed to prove the first time. This is a principle of discipline and fair play that courts must enforce with care.

Evidence by Affidavit and on Commission: Orders XIX and XVIII, Rule 19

The Code also permits, in appropriate circumstances, that evidence be given by affidavit alone under Order XIX, Rule 1. However, this general power is expressly circumscribed: where it appears that a party bona fide desires the production of a deponent for cross-examination and the deponent can be produced, the court shall not permit his evidence to be given by affidavit without allowing cross-examination. The right of cross-examination is so fundamental to the adversarial process that it cannot be taken away by a mere order permitting affidavit evidence, when the opposing party genuinely desires to test the deponent's testimony. Affidavits filed as evidence must, under Order XIX, Rule 3, be confined to facts within the deponent's own knowledge; hearsay and argumentative matter are not admissible in a substantive affidavit, and the cost of any such affidavit setting out such material shall ordinarily be borne by the party filing it.

Additionally, the 1999 Amendment inserted Order XVIII, Rule 19, empowering the court to direct, instead of examining witnesses in open court, that their statements be recorded on commission under Order XXVI, Rule 4-A. This is a recognition that examining every witness in open court, with all the delay that entails, is not always necessary or efficient — especially where the witness is a distant expert, an official, or a person whose testimony on a specific point is not controversial.

Failure to Produce Evidence: Order XVII, Rule 3

No account of the examination of witnesses would be complete without noting the consequences of default. Where a party, having been granted time to produce his evidence or cause the attendance of his witnesses, fails to do so, the court may, under Order XVII, Rule 3, if the parties are present, proceed to decide the suit forthwith, or if any party is absent, proceed under Rule 2. The purpose is plain: time granted by a court is granted in trust, and a party who squanders it without cause must accept the consequences. The Supreme Court, in Arjun Singh v. Mohinder Kumar (AIR 1964 SC 993), clarified that this rule applies when time has been specifically granted for the production of evidence and the party has defaulted; it does not apply where the adjournment was granted on the joint application of both parties for a compromise.