Report No. 163
2.22. Clause 27 of the Amendment Bill.-
(i) The proposal to delete sub-rule (4) of rule 2 of Order XVIII does not appear to be an appropriate one. This was proposed, the Commission believes, in the light of the fundamental change in the manner of recording of evidence proposed by the new rule 4. Be that as it may, and even if new rule 4 is given effect to there is no reason why sub-rule (4) of rule 2 (which enables the court, for reasons to be recorded, to direct or permit any party to examine any witness at any stage) should be deleted. This sub-rule was specifically put in by the Code of Civil Procedure (Amendment) Act, 1976 for sound reasons and there is no reason to undo it now.
(ii) The existing rule 4 is sought to be substituted altogether by a new rule. The said rule states that, "The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge", whereas the proposed rule provides that
(a) the examination-in-chief of a witness shall be given by way of an affidavit, copies whereof shall be supplied to the opposite party by the party who calls him for evidence;
(b) the cross-examination and re-examination shall be done before the commissioner to be appointed by the court;
(c) power is, however, retained in the court to examine a witness in the court in the presence of and under the personal direction and superintendence of the Judge, for reasons to be recorded in writing;
(d) the expenses incurred for examination on commission shall be paid by the court or by the party summoning the witnesses as may be prescribed by the High Court; and
(e) where any question put to a witness is objected to by the other side, the commissioner shall allow the same to be put but shall take down the question together with his decision.
2.22.1. With respect to this new method of examination of witnesses, there was a good amount of controversy in all the conferences. While members of the Bar uniformly opposed this method, some members of the Bench welcomed it. The members of the Bench who welcomed the new proposal were of the opinion that this method would greatly help the court in disposing of the suits expeditiously. In fact, it was brought to our notice that in several courts, a peculiar method was being adopted whereunder while the Judge was hearing the arguments in one suit, the examination of witnesses in another suit was simultaneously going on in a corner of the court.
Indeed, we were told that sometimes the witnesses in two different suits were being examined in two different corners of the court while the Judge was hearing arguments in a third matter. Whenever any objection was raised or controversy arose in any one of those suits, the Judge stopped hearing the arguments, we were told, heard the objections and after disposing of the same, resumed hearing the arguments in the third suit. This method was being adopted, we are told, with a view to enabling the Judges to fulfil the quota of disposals prescribed by the High Courts. Be that as it may, we shall deal with the objections put forward to the new method suggested by the proposed rule 4.
2.22.2. So far as the examination-in-chief of a witness by way of an affidavit is concerned, the objection was that the evidence given in such a fashion would not only be not an evidence given in the court - not even the evidence given before the commissioner appointed by the court - but would be evidence given before an advocate. It was pointed out that very often words were put in the mouth of the witness which he had not uttered. In effect, it was submitted that it would be evidence of an advocate of the party and not of the witness.
Yet another objection put forward in this behalf was that if the examination-in-chief was allowed to be tendered by affidavit, the command of the Evidence Act that no leading questions could be put in examination-in-chief, could not be observed and implemented. It was also submitted that very often many documents were marked in the course of examination-in-chief of a witness and if no objection was raised on that occasion itself and the document is marked, the opposite party would be precluded from raising the objection at a later stage. The example of marking of insufficiently or unstamped documents was given and the bar in section 36 of the Stamp Act was relied upon.
2.22.3. So far as the cross-examination and re-examination on commission is concerned, the objections were manifold. It was submitted that the solemnity and sanctity of the court would not be there if evidence was recorded in the office of a commissioner or at any other premises. It was submitted that sub-rule (7) of rule 4, as proposed, only provided for the commissioner taking down the question together with his decision where an objection was raised by a party and the commissioner allowed the said question to be put.
The rule did not provide, it was pointed out, as to what should happen in case the commissioner upheld the objection and did not allow the question to be put. Yet another objection put forward related to the practical aspect of the matter. It was submitted that whenever a witness was examined on commission, the record had to be taken by a clerk of the court to the advocate's office or to such other premises, as the case may be, where the evidence of the witness was being recorded.
It was pointed out that the record could not be made over to the commissioner and that it was necessarily to be in the custody of a court officer. It was further pointed out that if the recording of evidence on commission became the general practice, a number of suits may be simultaneously opened where the evidence was being recorded and there would not be sufficient number of clerks available to take the files and attend the recording of evidence by different commissioners.
Some of the participants pointed out that the commissioners generally did not conclude their work expeditiously and that they go on leisurely and very often demanded facilities at high cost hotels involving lunch and other miscellaneous expenses. It was pointed out that many of the parties might not be able to afford the said expenses. Some others objected that only where the witnesses were examined in the court, would the court be able not only, to notice the demeanour of the witness but also form an impression about the veracity of his evidence and about his credibility. All these elements would be missing in cases of evidence recorded on commission, they submitted.
2.22.4. On the other hand, it was pointed out by certain members of the judiciary that the aspect of demeanour or for that matter the assessment of the credibility and veracity of a witness by the court was no longer of any real significance because of the large number of suits and the large number of witnesses who were examined by the courts every week/every month. It was pointed that unless the demeanour was recorded by the court even during the course of examination of the witness, it could not be relied upon by the court while disposing of the suit.
It was also pointed out that in countries like the United States of America, the entire evidence was recorded not even before the commissioner but in the office of the attorney of the party whose witness was being examined. The said system was functioning successfully, it was pointed out. It was also suggested that because of the heavy load of work, the presiding officer was obliged to spend most of the early hours of the day in disposing of miscellaneous matters and that if evidence was to be recorded by the Judges themselves, not much time would be left for hearing arguments, for study, for reflection and for preparation of judgments.
From this stand point, it was submitted that the proposed rule 4 was an extremely welcome step. It was submitted that the examination-in-chief should also be required to be recorded before the commissioner instead of being tendered by way of an affidavit.
2.22.5. After considering all the view points carefully, the Law Commission has come to the conclusion that rule 4 might be redraf ted as follows:-
(a) In all suits, the subject-matter whereof is valued at more than Rs. 5,00,000, the examination-in-chief, cross-examination and re-examination may be done before the commissioner to be appointed by the court except in cases where the court, for reasons to be recorded in writing, considers that the witnesses or some of them as may be specified by the court, shall be examined in court.
(b) Presiding Judge of every principal civil court in a city or town shall prepare a list of commissioners comprising retired judicial officers and other senior advocates who are prepared to undertake the job. It would be appropriate if the court also specifies the scale of remuneration of such commissioners. The remuneration may be fixed on an hourly basis.
(c) The expenses of commission shall be incurred by the party whose witness is being examined. Ordinarily the evidence shall be recorded at the office of the commissioner (if he is an advocate) or such other place as may be agreed upon by the parties and the commissioner. It may also be considered whether it would not be convenient if the evidence is recorded at some place in the court premises, wherever available. It would also be appropriate if the Commissioner undertaken this work after the court hours or during holidays.
(d) Even in suits the value whereof is less than Rs. 5,00,000, the examination of witnesses can be done on commission, if the parties agree thereto-subject, of course, to the orders of the court.
(e) The proposal to adduce evidence of a witness in his examination-in-chief by way of an affidavit be dropped.
(f) Where a question put to a witness is objected to by a party or his pleader and the commissioner disallows the same, the Commissioner shall record the question, the objection and his decision thereon. Where he allows the question to be put notwithstanding the objection, even in such a case, the commissioner shall record the question, the objection and his decision thereon along with the answer given by the witness in that behalf.
(iii) The proposal to delete rule 17A, which was indeed inserted by the 1970 Amendment Act has been strongly opposed by practically all the participants/ respondents. The Law Commission is also of the opinion that there is no good reason why this rule which was incorporated by the 1976 Amendment Act after due deliberation should be taken away. The proposal to delete the sub-rule may, therefore, be dropped.