Code of Civil Procedure, 1908

Order XVIII CPC Rules 1 to 6: Hearing of the Suit and Examination of Witnesses

Order XVIII of the Code of Civil Procedure, 1908 governs the hearing of civil suits and the manner in which evidence is led and recorded. This page covers Rules 1, 2, 3, 3A, 4, 5 and 6, including the right to begin, statement of the case, production of evidence, written arguments, order of appearance of a party as witness, examination-in-chief by affidavit, recording of evidence in appealable cases and interpretation of depositions.

Official legal source: The current central text of the Code of Civil Procedure, 1908 is available on India Code, Ministry of Law and Justice.

Applicability note: Certain additional sub-rules shown below were introduced for commercial disputes of a specified value through the Commercial Courts legislation. State amendments and High Court rules may also affect procedure in a particular jurisdiction.

Rule 1 - Right to begin

The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends 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.

Rule 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.

Written arguments under Rule 2

(3A) Any party may address oral arguments in a case and shall, before concluding the oral arguments, if the Court so permits, submit concisely and under distinct headings written arguments in support of his case to the Court. 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 written arguments unless the Court, for reasons to be recorded in writing, considers it necessary.

(3D) The Court shall fix such time-limits for oral arguments by either party as it thinks fit.

Commercial disputes of specified value: The CPC as modified for commercial disputes contains additional written-argument requirements, including advance filing, identification of statutory provisions and judgments relied upon, simultaneous service on the opposite party, limited revised written arguments after conclusion of oral arguments, restrictions on adjournments for filing written submissions and power of the Court to limit oral submissions.

Jammu and Kashmir and Ladakh: The uploaded source also records adaptation provisions for these Union Territories concerning written arguments under Rule 2. Parties should verify the currently applicable adaptation orders and local High Court rules before relying on those special provisions.

Rule 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. 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; but the party beginning will then be entitled to reply generally on the whole case.

Rule 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.

Rule 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 filed along with the affidavit shall be subject to the orders of the Court.

Commercial disputes of specified value: Additional sub-rules provide that affidavits of evidence of all proposed witnesses are to be filed simultaneously at the time directed in the first Case Management Hearing; additional affidavit evidence requires sufficient cause and a reasoned order; and a party may withdraw an affidavit before cross-examination, subject to the right of another party to tender and rely upon admissions contained in that withdrawn affidavit.

(2) The evidence, namely cross-examination and re-examination, of the witness in attendance whose 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.

Provided that the Court may, while appointing a commission under this sub-rule, take 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 Commissioner. Where evidence is recorded by the Commissioner, the Commissioner shall return the evidence together with a signed written report to the Court appointing him, and the evidence shall form part of the record of the suit.

(4) The Commissioner may record such remarks as are considered material respecting the demeanour of any witness while under examination.

Provided that any objection raised during recording of evidence before the Commissioner shall be recorded by the Commissioner and decided by the Court at the stage of arguments.

(5) The Commissioner's report 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 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 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, so far as applicable, apply to the issue, execution and return of a commission under this rule.

Jammu and Kashmir and Ladakh: The uploaded source records corresponding adaptation provisions relating to sub-rules (1A) to (1C). Current applicability should be checked against the relevant adaptation orders and High Court rules.

Rule 5 - How evidence shall be taken in appealable cases

In cases 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.

Rule 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 the witness in the language in which it is given.