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Report No. 163

Q.35. Order 18, rule 4 (Examination by the Judge in open court): Clause 27(ii) of the Bill

In the present scheme of the Code, witnesses are to be examined in open court by the Judge. Order 18, rule 4 provides as under:

"4. 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."

This applies, inter alia, to expert witnesses also. Lakshmayya v. Suryanaravana, AIR 1958 AP 254.

The Bill proposes to substitute a radically different scheme, by revising Order 18, rule 4.

The revised rule, (which is lengthy enough) need not be quoted at this place. But its principal features are as under.-

(a) Examination in chief of a witness shall be in the form of affidavit.

(b) Thereafter, his cross-examination shall be taken orally by a Commissioner.

(c) The Commissioner shall he selected by the trial court from a panel constituted by the District Judge. He will be suitably renumerated (High Court will make rules on the subject).

(d) Commissioner shall record the evidence and make a report and submit the same to the court.

(e) When a question is objected to by a party, but is still allowed by the Commissioner, "the Commissioner shall take down the question together with his decision - this is laid down in proposed Order 18, rule 4(7). [Incidentally, the proposed sub-rule is silent about taking down the gist of the objection and the answer given by the witness].

(f) For reasons to be recorded, the court may examine a witness in open court. [See proposed Order 18, rule 4(2), proviso].

The language of proposed Order 18, rule 4(2) main para. would seem to suggest that (subject to the proviso), the ordinary mode will be examination through commissioner. But proposed Order 18, rule 19 (new) and Order 26, rule 4A (new) [see clause 27 of the Bill] suggest that the matter is in the court's discretion. [See under Q.37 and Q.39, below].

The Commission is of the opinion that this is a very salutory and long overdue provision. The age-old rule that final decision by the judge who has heard the evidence is conducive to a fair judgment has lost much of its validity in the present day situation. Very often we find that the judge who decides the case finally is not the judge who has recorded the evidence. In many places, retired judicial officers are available, who can be assigned this job which will also save the frequent trips and the incidental expenses involved in bringing the witnesses on every adjourned date of hearing.

This would also mean a great saving of time of trial courts, which can be gainfully employed in final hearing of suits and/or the interlocutory matters. In most of the States, the courts are groaning under the weight of workload and the proposed process would mean a god -send to them. This does not mean that the court cannot itself take up the recording of deposition of witness(s). Where it thinks that such a course is just and proper or where the court has ample time at its disposal, it can certainly choose to do so.

So far as demeanour of witness is concerned, the ordinary rule is that it should be recorded at the time of recording of his deposition (See Order 18, rule 12). If it is not so recorded, but is referred to in the judgment, proper reasons must be given for such opinion (see AIR 1972 SC 1618) referred with reference to section 363, Cr. P.C. (1898) which broadly corresponds to order 18 rule 12, C.P.C.

Such a procedure is in vogue in USA and has been working successfully. A few points of detail should also be adverted to, at this stage:

(a) In Order 18, rule 4 is to be amended as proposed, some consequential changes may be needed in other rules also (for example, in Order 18, rule 5, Order 18, rules 5, and 14, Order 18, rule 15, etc.).

(b) Where a question is objected to, by the opposite party, but is allowed by the Commissioner, it may be better to provide that the Commissioner shall take down:

(i) the question;

(ii) the nature of the objection;

(iii) the name of the objector;

(iv) the decision of the Commissioner; and

(v) the answer given by the witness.

[Cf. Order 18, rule 11, as to the evidence recorded by the Judge himself].

(c) It should also be considered as to what is the status of the order passed by the Commissioner. At present, a Commissioner appointed to take the evidence of witnesses has no power to disallow questions which he considers irrelevant.

Ram Krishna Dalmia v. Firoze Chand, AIR 1960 Punj 430.

Such a power may have to be conferred upon the Commissioner, by the rule.

At present, Order 26, rule 16A (inserted in 1976), deals with the matter in some detail.

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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