Report No. 54
Point as to tape-recording
18.6. We are, however, of the view1 that the matter should be put beyond doubt. We are, further, of the view that there should be an express provision to the effect that the evidence should be dictated directly on the type-writer. Lastly, the law should permit the evidence to be tape-recorded. We recommend an amendment of rule 5, on all these points.
1. Cf. 14th Report, Vol. I.
18.7. Order 18, rule 8, requires that when the judge does not himself take down the evidence, he shall make a memorandum of the substance of the evidence. Such a memorandum is in addition to the verbatim record kept under rule 5. This 'dual record' is, in our view, not necessary where the Judge takes down or dictates the evidence and the rule should, therefore, be modified, accordingly.
18.8. Under Order 18, rule 13, in non-appealable cases, a memorandum of the evidence is to be written by the Judge. Here also, dictation should be provided for, rule 14 (permitting dictation of the memorandum where the Judge is unable to make the memorandum himself in appropriate cases) should, in consequence, be omitted.
18.9.to 18.13. In the result, the following re-drafts of Order 18, rules 5, 8, 9, 13 and 14 are suggested:-
"5. In cases in which an appeal is allowed, the evidence of each witness shall be-
(a) taken down in the language of the Court
(i) in writing by, or in the presence and under the personal direction and superintendence of, the judge, or
(ii) from the dictation of the Judge, dictation on the typewriter, or
(b) recorded mechanically in the language of the Court in the presence of the Judge."
"8. Revised Order 18, rule 8.-Where the evidence is not taken down in writing by the judge, or from his dictation in the open court, or recorded mechanically in his presence, he shall be bound, as the examination of each witness proceeds, to make and memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record."
"9. Redraft of Order 18, rule 9.-Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence as is given in English being taken down in English, the judge may so take it down or cause it to be taken down."
"13. Revised Order 18, rule 13.-In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witness at length; but the judge, as the examination of each witness proceeds, shall make, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record."
[Order 18, rule 14, to be omitted].
Order 18, rule 17A
18.14. A situation sometimes arises where, after the close of the evidence of a party's witnesses, fresh evidence is discovered which was not within the knowledge of the party. The question may arise whether the party can produce that evidence. The answer should be 'yes',
18.15. The Code has no specific provision on the point, and the matter is governed by practice. Under the Evidence Act, the order1 in which witnesses are to be produced and examined, depends on the law relating to procedure; and, in the absence of a law, by the discretion of the Court. The Code of Civil Procedure also contains provisions2 permitting the Court to call or recall witnesses. And the wide wording of the relevant rules,-e.g. the words "at any time" in Order 16, rule 14, and the words "at any stage of the suit" in Order 18, rule 17,-suggests that the policy of the Code is to leave a wide discretion to the Court3.
1. Section 136, Evidence Act.
2. Order 16, rule 14; Order 18, rule 17.
3. See Madhubai v. Amthalal, AIR 1947 Born 156 (case under Order 18, rule 17).
18.16. It is felt that a specific provision dealing with the situation described above, would be useful. In the rule dealing with additional evidence in the appellate Court, we are recommending the insertion of a provision permitting the production of additional evidence which was not within the party's knowledge at the time when the decree was passed. A similar provision, covering the stage before the decree was passed, would be desirable, it would minimise the number of applications for additional evidence in the appellate Court.
18.17. Accordingly, we recommend that the following new rule should be inserted in Order 18:
"17A. Where a party satisfies the Court that any evidence, not withstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit him to produce that evidence at a later stage, on Such terms its may appear just."