Report No. 163
Witnesses and Evidence
Q.34. Order 18, rule 2(4) (Order of examination of parties): Clause 27(i) of the Bill
Order 18, rule 2 of the Code provides for the order in which witnesses shall be examined. The general rule may be departed from, under Order 18, rule 2(4), which reads as under:-
"(4) Notwithstanding anything contained in this rule, the court may, for reasons to be recorded, direct or permit any party i to examine any witness at any stage."
The Bill proposes that this sub-rule shall be deleted.
For understanding the implications of this proposal, it is desirable to look at the scope and utility of the present sub-rule. It confers two different kinds of power on the court-
(i) power to direct the examination of witnesses at any stage; and
(ii) power to permit the examination of witnesses at any stage.
At the outset, it should be pointed out that sub-rule (4) (now proposed to be deleted came to be inserted in 1976, and incorporates the gist of High Court Amendments (made by the High Courts of Assam and Nagaland, Kerala, Madhya Prasdesh, etc.) One of the reasons why the law was regarded as needing such clarification was the fact that some High Courts had taken the view, that after the case is adjourned for arguments, the Court is not bound to examine a witness (even if he is present).
Cf. Mohanlal v. Indarman, AIR 1954 Raj 238, dissenting from the opinion of the Chief Justice in Monilal Badopadhya v. Khiroda Das, 1894 ILR 20 Cal 740.
The sub-rule was added in 1976 to remove the controversy. If it is deleted, the earlier controversy will be revived.
That apart, on the merits also, the provision in sub-rule (4) seems to be needed. Following are some illustrative situations:
Illustrative Cases - Order of Examination
(i) After the plaintiff had closed his case, the defendant tendered certain documents through his witnesses. Plaintiff had no opportunity of rebutting them. The court permitted him to produce additional evidence for the purpose.
Aranya Kumar v. Chintamani, AIR 1997 Ori 87.
Cf. Alekh Pradhan v. Bhramar Pal, AIR 1979 Ori 58.
(ii) Plaintiff was in hospital, when his witnesses were being examined. Court allowed the plaintiff himself to be examined at the end.
Shiv Sahay v. Nandlal, AIR 1989 MP 40 (42).
Cf. Brahmdeo Prasad Sah v. Ram Sakal Sah, AIR 1985 Pat 57.
(iii) Case was set ex parte for the defendant absence. The defendant was later permitted to participate in the trial (though ex parte order was not set aside as such). It was held that the court could permit a party to examine its own witnesses Subala Charan Rout v. Profulla Kumari Dai, AIR 1991 Ori 157.