Report No. 54
19.1. While the oral examination of witnesses in Court is dealt with under Order 18, the next Order-Order 19-empowers the Court at any time, "for sufficient reason", to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. But, if either party bona fide desires to cross-examine the witness, an order authorising the witness to give evidence by affidavit cannot be made.
19.2. It is now well settled that in the absence of any agreement between the parties and in the absence of an order made by a Court under rule 1 of Order 19 of the Code of Civil Procedure and except in cases in which an Order is made for examination by interrogatories or before a Commissioner the witnesses at the trial should be examined viva voce and in open Court.1
This rule is modified by Order 19. There are also other provisions where, in specific instances2, the Court is expressly permitted to act upon affidavits.
1. Cf. Warner v. Mosses, (1880) 16 Ch D 100.
2. (a) Order 5, rule 19.
(b) Order 11, rules 8 to 20.
(c) Order 32, rule 3.
(d) Order 38, rules 1 and 5.
(e) Order 39, rule 1.
19.3. In general, the litigating public in India does not seem to have taken kindly to affidavits, and the words "for sufficient reason" in Order 19, rule 1, seem to have been construed as limiting the discretion of the Court of exceptional cases,-apart, of course, from evidence given by affidavits in support of interlocutory applications where the discretion of the Court is wider.1
1. Cf. Mimi Wasappa v. Swamigal, AIR 1959 Mys 139 (Soma Nath Iyer J.).
19.4. We do not recommend any change in this Order, as the increased use of affidavits is a matter dependant mainly on co-operation of litigants.