Hearing of the suit and examination of witnesses
1. Right to begin.
The plaintiff has the right to begin unless the defendant admits the facts alleged
by the plaintiff and contents that either in point of law or on some additional facts alleged by the
defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant
has the right to begin.
2. Statement and production of evidence.
(1) On the day fixed for the hearing of the suit or on
any other day to which the hearing is adjourned, the party having the right to begin shall state his case and
produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address
the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
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[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in
support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the
Court, for reasons to be recorded in writing, considers it necessary to grant such adjourment.
1. The Explanation ins. by Act 104 of 1976, s. 68 (w.e.f. 1-2-1977).
2. Subs. by s. 68, ibid., for certain words (w.e.f. 1-2-1977).
3. Ins. by Act 22 of 2002, s. 12 (w.e.f. 1-7-2002).
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(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it
thinks fit.]
*[(3A) A party shall, within four weeks prior to commencing the oral arguments, submit concisely
and under distinct headings written arguments in support of his case to the Court and such written
arguments shall form part of the record.
(3B) The written arguments shall clearly indicate the provisions of the laws being cited in support of
the arguments and the citations of judgments being relied upon by the party and include copies of such
judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the opposite party.
(3D) The Court may, if it deems fit, after the conclusion of arguments, permit the parties to file
revised written arguments within a period of not more than one week after the date of conclusion of
arguments.
(3E) No adjournment shall be granted for the purpose of filing the written arguments unless the
Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3F) It shall be open for the Court to limit the time for oral submissions having regard to the nature
and complexity of the matter.]
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3. Evidence where several issues.
Where there are several issues, the burden of proving some of
which lies on the other party, the party beginning may, at his option, either produce his evidence on those
issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case,
the party beginning may produce evidence on those issues after the other party has produced all his
evidence, and the other party may then reply specially on the evidence so produced by the party
beginning; but the party beginning will then be entitled to reply generally on the whole case.
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[3A. Party to appear before other witnesses.
Where a party himself wishes to appear as a
witness, he shall so appear before any other witness on his behalf has been examined, unless the Court,
for reasons to be recorded, permits him to appear as his own witness at a later stage.]
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[4. Recording of evidence.
(1) In every case, the examination-in-chief of a witness shall be on
affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for
evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
*[(1A) The affidavits of evidence of all witnesses whose evidence is proposed to be led by a party
shall be filed simultaneously by that party at the time directed in the first Case Management Hearing.
(1B) A party shall not lead additional evidence by the affidavit of any witness (including of a witness
who has already filed an affidavit) unless sufficient cause is made out in an application for that purpose
and an order, giving reasons, permitting such additional affidavit is passed by the Court.
(1C) A party shall however have the right to withdraw any of the affidavits so filed at any time prior
to commencement of cross-examination of that witness, without any adverse inference being drawn based
on such withdrawal:
Provided that any other party shall be entitled to tender as evidence and rely upon any admission
made in such withdrawn affidavit.]
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose
evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the
Court or by the Commissioner appointed by it:
1. Sub-rule (4) omitted by Act 46 of 1999, s. 27 (w.e.f. 1-7-2002).
2. Ins. by Act 104 of 1976, s. 69 (w.e.f. 1.2-1977).
3. Subs. by Act 22 of 2002, s. 12, for rule 4 (w.e.f. 1-7-2002).
*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).
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Provided that the Court may, while appointing a commission under this sub-rule, consider taking into
account such relevant factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such
evidence is recorded by the Commissioner he shall return such evidence together with his report in writing
signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the
suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any
witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be
recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within
sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing
extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners
to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the
services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall
apply to the issue, execution and return of such commission under this rule.]
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[ 5. How evidence shall be taken in appealable cases.—In case in which an appeal is allowed, the
evidence of each witness shall be,—
(a) taken down in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and superintendence of,
the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of
the Court in the presence of the Judge.]
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6. When deposition to be interpreted.
Where the evidence is taken down in a language different
from that in which it is given, and the witness does not understand the language in which it is taken down,
the evidence as taken down in writing shall be interpreted to him in the language in which it is given.
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7. Evidence under section 138.
Evidence taken down under section 138 shall be in the form
prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected
as if it were evidence taken down under that rule.
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8. Memorandum when evidence not taken down by Judge.
Where the evidence is not taken down
in writing by the Judge, 4[or from his dictation in the open Court, or recorded mechanically in his presence,]
he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of
what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form
part of the record.
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[ 9. When evidence may be taken in English.—(1) Where English is not the language of the Court,
but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by
pleaders, do not object to having such evidence as is given in English, being taken down in English, the
judge may so take it down or cause it to be taken down.
1. Subs. by Act 104 of 1976, s. 69, for rule 5 (w.e.f. 1-2-1977).
2. The provisions of rule so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see
the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).
3. The provisions of rules 6, 7, 8, 9, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court
of Oudh, see, s. 16 (2), ibid.
4. Ins. by Act 104 of 1976, s. 69 (w.e.f. 1-2-1977).
5. Subs. by s. 69, ibid., for rule 9 (w.e.f. 1-2-1977).
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(2) Where evidence is not given in English but all the parties who appear in person, and the pleaders of
such of the parties as appear by pleaders, do not object to having such evidence being taken down in English,
the Judge may take down, or cause to be taken down, such evidence in English.]
10. Any particular question and answer may be taken down.
The Court may, of its own motion or on
the application of any party or his pleader, take down any particular question and answer, or any objection to
any question, if there appears to be any special reason for so doing.
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11. Questions objected to and allowed by Court.
Where any question put to a witness is objected to by a
party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the answer, the
objection and the name of the person making it, together with the decision of the Court thereon.
12. Remarks on demeanour of witnesses.
The Court may record such remarks as it thinks material
respecting the demeanour of any witness while under examination.
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[ 13. Memorandum of evidence in unappealable cases.—In cases in which an appeal is not allowed it
shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as
the examination of each witness proceeds shall make in writing, or dictate directly on the typewriter, or cause to be
mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall
be signed by the Judge or otherwise authenticated, and shall form part of the record.]
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14. [Judge unable to make such memorandum to record reasons of his inability] omitted by the Code of
Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 69 (w.e.f. 1-2-1977).]
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15. Power to deal with evidence taken before another Judge.
(1) Where a Judge is prevented by death,
transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or
memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken
down or made by him or under his direction under the said rules and may proceed with the suit from the stage at
which his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken
in a suit transferred under section 24.
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16. Power to examine witness immediately—(1) Where a witness is about to leave the jurisdiction of
the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken
immediately, the Court may, upon the application of any party or of the witness, at any time after the
institution of the suit, take the evidence of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court
thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be
signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at
any hearing of the suit.
17. Court may recall and examine witness.
The Court may at any stage of a suit recall any witness
who has been examined and may (subject to the law of evidence for the time being in force) put such questions
to him as the Court thinks fit.
17A. [Production of evidence not previously known or which could not be produced despite due diligence.]
omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), s. 27 (w.e.f. 1-7-2002).
18. Power of Court to inspect.
The Court may at any stage of a suit inspect any property or thing
concerning which any question may arise 3[and where the Court inspects any property or thing it shall, as soon
as may be practicable, make a memorandum of any relevant facts observed at such inspection and such
memorandum shall form a part of the record of the suit].
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[19. Power to get statements recorded on commission.
Notwithstanding anything contained in
these rules, the court may, instead of examining witnesses in open court, direct their statements to be
recorded on commission under rule 4A of Order XXVI.]
1. The provisions of rules 11, 13, 14, 15, so far as they relate to the manner of taking evidence, are not applicable to the Chief
Court of Oudh, see the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).
2. Subs. by Act 104 of 1976, s. 69, for the rule, (w.e.f. 1-2-1977).
3. Ins. by s. 69, ibid. (w.e.f. 1-2-1977).
4. Ins. by Act 46 of 1999, s. 27 (w.e.f. 1-7-2002).
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