Right to Begin (Order 18 Rule 1)
Explanation and Scope
The plaintiff typically has the right to begin unless the defendant admits the facts alleged by the plaintiff and argues that the plaintiff is not entitled to any relief based on legal points or additional facts. In such scenarios, the defendant may start first. The determination of the right to begin relies on the rules of evidence. Generally, the party bearing the burden of proof starts. For instance, in Mirza Niamat Baig v. Sk. Abdul Sayeed, 2009(1) CCC 75 (Ori.), it was held that since the plaintiff raised allegations of fraud, he had to begin first as per Order 18, Rule 1 of CPC.
In another case, Associate Auto Agencies Automobiles Dealers and Engineers v. M/s. Chhotabhai Jithabhai and Co., 1993(2) C.C.C. 175 (M.P.), the defendant had to prove the delivery of a car after admitting the plaintiff’s payment, thereby bearing the burden of proof and leading evidence first. This rule ensures fairness in the trial process by aligning the presentation of evidence with the party who needs to substantiate their claims or defenses.
Statement and Production of Evidence (Order 18 Rule 2)
Procedure
On the hearing day, the party with the right to begin must state their case and produce supporting evidence for the issues they are required to prove. The opposing party will then state their case and present any evidence they have, followed by a general address to the court on the entire case. The initial party can then reply generally on the whole case. Oral arguments may be supplemented with written arguments if permitted by the court, forming part of the record, as seen in Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353.
Scope and Importance
The procedure ensures systematic and orderly presentation of cases, enabling the court to comprehensively understand each party’s stance. Dismissal of a suit due to a plaintiff’s failure to produce evidence after multiple opportunities, as in Manohar Lal Ahuja v. Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del.), underscores the importance of adherence to these rules.
Party to Appear Before Other Witnesses (Order 18 Rule 3A)
If a party wishes to appear as a witness, they must do so before examining other witnesses unless the court allows otherwise for recorded reasons. This rule ensures the witness’s credibility and immediate relevance of their testimony.
Recording of Evidence (Order 18 Rule 4)
Examination-in-Chief and Cross-Examination
Examination-in-chief must be on affidavit, with copies provided to the opposing party. Cross-examination and re-examination are conducted by the court or a commissioner appointed for the task. The commissioner’s recorded evidence, including remarks on witness demeanor, forms part of the suit’s record. For instance, the validity and applicability of Order 18, Rule 4 were upheld in Salem Advocate Bar Association’s case.
Scope and Interpretation
Order 18, Rule 4(2) allows discretion for evidence recording by a commissioner, maintaining the right of cross-examination and ensuring the trial’s integrity. Complex cases may prompt courts to record cross-examinations themselves to observe witness demeanor directly, as discussed in Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom.178 (Full Bench). The rule mandates that cross-examinations must occur, but it is the court’s discretion whether they happen before the court or a commissioner.
Production of Documents with Affidavit (Order 18 Rule 4(1))
Parties can produce documents with their affidavits, but the court must decide on their admissibility before they are exhibited as evidence, preventing postponement of such decisions until case disposal. This principle was emphasized in Durga Shankar S. Trivedi v. Babubani Bhulabhai Parekh, AIR 2003 Bom. 487.
Video Conferencing and Electronic Recording
Evidence can be recorded through video conferencing, and audio-visual recordings can form part of the record. This modern approach aligns with efficient case management, reducing delays and logistical constraints. This was supported in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2002(8) Supreme 55.
Commissioner’s Power and Role
A commissioner can record objections during evidence collection but cannot declare a witness hostile. The court retains this discretion under Section 154 of the Evidence Act. If required, parties must obtain the court’s permission to treat a witness as hostile. This distinction ensures judicial control over critical aspects of witness examination, as clarified in Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353.
Applicants’ Appearance in Court
Applicants filing affidavits must appear in court to testify. Affidavits without the witness’s presence in the witness box do not constitute evidence, as noted in F.D.C. Ltd v. Federation of Medical Representatives Association India (FMRAI), AIR 2003 Bombay 371. The Supreme Court confirmed this in Ameer Trading Corporation v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702.
Remarks on Witness Demeanor (Order 18 Rule 12)
The court can record material remarks about a witness’s demeanor during examination. This practice aids in evaluating witness credibility and overall evidence reliability.
Immediate Examination of Witnesses (Order 18 Rule 16)
If a witness is about to leave the court’s jurisdiction or for other sufficient reasons, the court may immediately take their evidence. Such urgency was justified in Samuel H. Joseph & Ors. v. Dr. Johan C. Taylor, 1991(1) CCC 595, where the plaintiff’s imminent departure warranted immediate testimony.
Court’s Power to Recall and Examine Witness (Order 18 Rule 17)
The court can recall any witness at any stage to clarify issues or doubts. This power, primarily for judicial clarification, was underscored in K.K. Velusamy v. N. Palaanisamy, 2011 (2) CCC 28 (SC). However, it does not extend to further examination or introducing new evidence.
Issuing Commission to Examine Witness (Order 26 Rule 1)
Courts can issue commissions for examining witnesses unable to attend due to sickness or other infirmities. Advanced age can also be a valid reason for this provision, as recognized in Om Prakash Kajaria v. Circular Investment Trust Ltd., AIR 2009 Cal. 66. The court must monitor the commission’s proceedings to prevent delays and ensure efficient evidence collection, as highlighted in M/s Fashion Linkers & Ors. v. Mrs. Savitri Devi & Anr., 1995 (3) CCC 604 (Del.).
These procedural rules under the CPC aim to streamline the hearing process, ensure fair presentation of evidence, and maintain judicial efficiency while safeguarding the rights of the parties involved.
Key Cases Referred / Cited
- Mirza Niamat Baig v. Sk. Abdul Sayeed, 2009(1) CCC 75 (Ori.)
- Associate Auto Agencies Automobiles Dealers and Engineers v. M/s. Chhotabhai Jithabhai and Co., 1993(2) C.C.C. 175 (M.P.)
- Manohar Lal Ahuja v. Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del.)
- Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353
- Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom.178 (Full Bench)
- Durga Shankar S. Trivedi v. Babubani Bhulabhai Parekh, AIR 2003 Bom. 487
- Samuel H. Joseph & Ors. v. Dr. Johan C. Taylor, 1991(1) C.C.C. 595
- K.K. Velusamy v. N. Palaanisamy, 2011 (2) CCC 28 (SC)
- Akash v. Gian Singh, AIR 2010 H.P. 93
- Om Prakash Kajaria v. Circular Investment Trust Ltd., AIR 2009 Cal. 66
- M/s Fashion Linkers & Ors. v. Mrs. Savitri Devi & Anr., 1995 (3) CCC 604 (Del.)