What is the procedure for recording evidence?

The Procedure for Recording Evidence

The examination of witnesses and the recording of their testimony is perhaps the most consequential stage of a civil suit. It is here that the factual dispute is tested, assertions are confronted, and the truth is sifted from contradiction. The Code of Civil Procedure, 1908, through Order XVIII — "Hearing of the Suit and Examination of Witnesses" — lays down a complete and detailed procedure governing how evidence is adduced, who speaks first, how testimony is reduced to record, and how objections are handled. This procedure underwent a fundamental transformation with the Code of Civil Procedure Amendment Acts of 1999 and 2002, which together modernised the system to reduce delay and decentralise the recording of oral evidence.

The Right to Begin: Order XVIII, Rule 1

The first question that presents itself at the hearing is: who leads evidence first? The general principle, rooted in the logic of burden of proof, is that the plaintiff has the right to begin. He who asserts must prove. However, Order XVIII, Rule 1 carves out an important exception: where the defendant admits all the facts alleged by the plaintiff but contends that either in law, or on some additional facts asserted by him, the plaintiff is not entitled to any relief — the defendant has the right to begin. This exception is entirely sensible. If the plaintiff's facts are not disputed, there is nothing left for the plaintiff to prove; it is the defendant who raises the contested question, and he must therefore be the first to substantiate it.

Sequence of Evidence and Arguments: Rule 2

Once the right to begin is settled, the procedure under Rule 2 unfolds in an orderly sequence. The party with the right to begin states his case and produces his evidence on the issues he is bound to prove. The other party then states his case, produces his evidence, and may address the court generally on the whole case. The party who began may then reply generally on the whole case.

The 2002 Amendment introduced sub-rules 3A to 3D, requiring parties to submit written arguments before concluding oral arguments, with the court having the power to fix time limits for oral submissions. A copy of the written arguments must simultaneously be furnished to the opposite side. No adjournment shall ordinarily be granted merely for the purpose of filing written arguments — a salutary safeguard against the chronic misuse of adjournments that had disfigured Indian civil litigation for decades.

Party as Witness: Rule 3A

A provision that deserves particular attention is Rule 3A, inserted by the Amendment Act of 1976. It provides that where a party himself wishes to appear as a witness, he must offer himself for examination before any other witness on his behalf is examined. The court may, for reasons to be recorded, permit him to appear at a later stage. The rationale is transparent: if the party steps into the witness box last, after hearing all his own witnesses, he gains an unfair advantage — the opportunity to fill lacunae and corroborate weaknesses in the evidence already recorded. The rule is designed to prevent this.

The Central Provision: Recording of Evidence under Rule 4

The most significant rule in Order XVIII, and the one that was most dramatically reformed by the 1999 and 2002 Amendments, is Rule 4. Under the original rule, witnesses were examined orally in open court before the Judge. That system, though valuable for its immediacy, consumed enormous judicial time. The Legislative wisdom recognised, after decades of experience, that the court's time was being disproportionately consumed in recording oral evidence, leading to unconscionable delays in disposal of suits.

The present Rule 4 as substituted by the 2002 Amendment works as follows.

First, examination-in-chief on affidavit. In every case — whether the suit be triable by the High Court or a subordinate court, whether appealable or not — the examination-in-chief of a witness shall be on affidavit. The party calling a witness must file an affidavit setting out the witness's evidence-in-chief, and copies must be supplied to the opposite party. Where documents are filed along with the affidavit, the proof and admissibility of such documents remain subject to the orders of the court. The Supreme Court in AT Corporation Ltd. v. Shapoorji Data Processing Ltd. (AIR 2004 SC 355) confirmed that the expression "in every case" occurring in Rule 4 makes no distinction between appealable and non-appealable cases — the affidavit procedure applies uniformly.

Second, cross-examination and re-examination by court or commissioner. Once the examination-in-chief by way of affidavit is furnished to the court, the cross-examination and re-examination of the witness may be taken either by the court itself or by a commissioner appointed by it. The court must consider all relevant factors before deciding whether to appoint a commissioner for this purpose. The second proviso to Rule 4(2) contains a special direction for the High Court: in a suit tried by the High Court, the evidence shall ordinarily be recorded by the commissioner unless the court directs otherwise. In courts subordinate to the High Court, the choice rests with the court. The Supreme Court in Salem Advocate Bar Association v. Union of India (AIR 2003 SC 189) affirmed that the court may order that evidence of any witness be partly recorded by the commissioner and partly by the court — the view that once a commissioner is appointed, the court loses all jurisdiction to record evidence is incorrect.

Third, manner of recording. Whether the evidence is recorded by the court or by the commissioner, it must be recorded either in writing or mechanically, in the presence of the Judge or commissioner, as the case may be. Where evidence is recorded by the commissioner, he must return it together with a signed report in writing to the court. Evidence so recorded forms part of the record of the suit. The use of electronic media — audio or audio-visual recording — is also recognised. The Supreme Court in Salem Advocate Bar Association (AIR 2003 SC 189) noted that it would be advisable for there to be at least an audio recording of the witness's statement whenever evidence is recorded by a commissioner.

Fourth, demeanour and objections. The commissioner — or the court — may record such remarks as are material respecting the demeanour of any witness while under examination. This is an important facility: the manner in which a witness gives evidence, his hesitation, his confidence or evasiveness, often speaks as loudly as the words he utters. Any objection raised during the recording of evidence before the commissioner must be recorded by the commissioner, but it shall be decided by the court at the stage of arguments — not decided immediately by the commissioner. This ensures that questions of admissibility are resolved by a judicial mind and not by the commissioner who is not a judicial officer.

Fifth, time limit for the commissioner's report. The commissioner must submit his report to the court within sixty days from the date of issue of the commission, unless the court, for reasons to be recorded in writing, extends the time. This time limit is a deliberate legislative intervention to prevent indefinite pendency at the evidence-recording stage.

Sixth, panel of commissioners. The High Court or the District Judge shall prepare a panel of commissioners from amongst whom a commissioner may be appointed to record evidence. The remuneration of the commissioner is fixed by the court by general or special order. This institutional structure — a standing panel, rather than ad hoc appointments — ensures availability, accountability, and consistency in the quality of recording.

Evidence in Appealable Cases: Rule 5

While Rule 4 governs the primary procedure for recording evidence, Rule 5 applies specifically to cases in which an appeal is allowed. In such cases, the evidence of each witness shall be taken down in the language of the court, either in writing by or in the presence and under the personal direction and superintendence of the Judge, or dictated by the Judge directly on a typewriter, or recorded mechanically in the language of the court in the presence of the Judge. This rule serves the needs of the appellate court: where the proceedings may travel to a higher forum, a complete and verbatim record of the evidence is necessary for the appellate court to re-examine findings of fact.

The High Court in Harish Vithal Kulkarni v. Pradeep Mahadev Salmis (AIR 2010 Bom 178 FB) held that the expression "shall" in Rule 4(2) has to be construed as "may" in relation to examination before a court, since a rigid literal construction would lead to absurd results. Rules 4 and 5 must be read harmoniously: Rule 5 is not an exception to Rule 4, and both operate in their respective domains.

Unappealable Cases: Rule 13

Order XVIII, Rule 13 makes a practical concession for suits in which no appeal lies. In such cases, it is not necessary to record the evidence of witnesses at length. The Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what the witness deposes, and such memorandum, signed or otherwise authenticated by the Judge, forms part of the record. The rationale is clear: where there is no appellate review on facts, the rigorous verbatim record required in appealable cases need not be maintained, and a summary memorandum suffices.

Objections to Questions: Rule 11

When any question put to a witness is objected to by a party and the court nevertheless allows the question to be put, Rule 11 requires the Judge to take down — or cause to be taken down — the question, the answer, the objection, the name of the person making it, and the court's decision thereon. This recording obligation ensures that objections and their disposition are not left to memory or inference, and are available for scrutiny in appeal or revision.

Witnesses Examined Commission: Rules 4A of Order XXVI and Rule 19 of Order XVIII

Rule 19 of Order XVIII, inserted by the 1999 Amendment, confers a broad power on the court to direct that witnesses' statements be recorded on commission under Rule 4A of Order XXVI, instead of examining witnesses in open court. Rule 4A of Order XXVI is itself a new and significant provision: unlike the original commission rules which required the witness to reside outside the court's jurisdiction before a commission could be issued, Rule 4A empowers the court to issue a commission for examination of any person resident within the local limits of its jurisdiction as well — if the interest of justice or expeditious disposal so demands. The evidence so recorded on such a commission is read in evidence. This innovation was welcomed as a means of reducing the pressure on courts by distributing the evidence-recording function to commissioned advocates, while ensuring that the substantive judicial function of deciding the case remained with the court.

When Evidence May Be Taken Immediately: Rule 16

Order XVIII, Rule 16 deals with a situation of practical urgency: where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown, the court may — upon application by any party or the witness himself — take the evidence of the witness at any time after the institution of the suit. This is sometimes called taking evidence de bene esse — preserving testimony before the formal hearing of the suit. The evidence so taken must be read over to the witness and, if he admits it to be correct, signed by him. The Judge corrects and signs it, and it may then be read at any hearing of the suit. Mere old age or apprehension of death, without more, is not sufficient cause for such immediate examination — something more concrete is required.

Recall and Re-examination: Rule 17

The court's power over evidence does not end with its recording. Rule 17 empowers the court to recall any witness who has been examined, at any stage of the suit, and to put such questions to him as the court thinks fit, subject to the law of evidence. This is not a power to be exercised routinely. The courts have consistently held that Rule 17 should be invoked to clear ambiguities in evidence already on record — not to fill lacunae or cure omissions in a party's case. In Vadiraj Naggappa Vernekar v. Sarad Chand Prabhakar Gogate (AIR 2009 SC 1604), the Supreme Court cautioned that this power should be sparingly exercised, and that it is not meant to enable a party to shore up weaknesses in evidence already adduced. An application for recall would be considered only where it is bona fide, where the additional evidence would clarify issues, and where the earlier non-production was for valid and sufficient reasons.

Power of Court to Inspect: Rule 18

Finally, Rule 18 recognises that evidence is not always confined to what witnesses say. The court may, at any stage of a suit, inspect any property or thing concerning which any question may arise. When the court undertakes such an inspection, it must, as soon as practicable thereafter, make a memorandum of any relevant facts observed at such inspection, and that memorandum forms part of the record. This power of personal inspection by the court is distinguishable from a commission for local investigation under Order XXVI, Rule 9: in the former, the court itself goes to the spot; in the latter, it deputes a commissioner to do so. Both devices serve the same ultimate purpose — ensuring that the adjudication is grounded in the actual state of affairs and not merely in the competing assertions of the parties.