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Report No. 54

Chapter 18

Hearing of The Suit and Examination of witnesses Introductory

18.1. On the day fixed for the hearing of the suit, the party having the right to begin is to state his case and to produce his evidence in support of the issues which he wants to prove; the other party can then state his case and produce his evidence, and may then address the Court generally on the whole case. The party beginning will then reply generally on the whole case. This topic-the statement and production of evidence-and the mode of examining witnesses and recording their evidence is the subject-matter of Order 18. Most of the questions under this Order arise not from any conflict of decisions, but from practical needs.

Order 18, rule 3A (examination of party)-[New rule]

18.2. We shall first refer to an important point regarding examination of the parties. The matter was considered in the earlier Report1, but, as we take a different view, we propose to discuss it again.

1. 27th Report, note on Order 18, rule 3.

18.3. The Fourteenth Report1 had recommended that ordinarily, a party who wishes to be examined as a witness should offer himself first, before the other witnesses are examined. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordinary rule2, but thought that a rigid provision on the subject would not be desirable.

1. Fourteenth Report, Vol. I.

2. Cf. Gurdyal Kaur v. Pyara Singh, AIR 1962 Punj 180 (181).

Recommendation

18.4. We think that the amendment recommended in the 14th Report should be carried out. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect-malpractice which borders on dishonesty-we think that the time has come to insert a statutory provision.

Accordingly, we recommend the insertion of the following rule in Order 18:

"3A. 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 to be recorded permits him to appear as his own witness at a later stage."

Order 18, rules 5, 8, 9, 13 and 14

18.5. It was noted in the earlier report1 that the Fourteenth Report had recommended2 that a provision empowering the Judge to dictate the verbatim record of evidence should be inserted, and the Code of Civil Procedure should be brought into line with the more elaborate provisions contained in this respect in section 256 of the Code of Criminal Procedure. The Commission, however, after some consideration, felt that the existing provisions were adequate. The present wording 'under the personal direction should, in its view, cover dictation.

1. 27th Report, note on Order 28, rule 5.

2. 14th Report, Vol. I.



The Code of Civil Procedure, 1908 Back




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