order 16 and order 18 of cpc
Trial under Civil Procedure Code (CPC): Procedure, Witness Summoning & Recording of Evidence Introduction In civil litigation, trial is the most crucial stage where the court examines evidence, hears arguments, and finally decides the case. Unlike preliminary steps (like filing of plaint, written statement, or notices), the trial is the main hearing of the suit where justice is tested in practice. The Code of Civil Procedure (CPC), 1908 lays down detailed provisions regarding trial, summoning of witnesses, recording of evidence, and hearing of suits. These provisions ensure fairness, transparency, and efficiency in judicial proceedings. What is a Trial? A trial means the stage where the judge: • Hears both oral and documentary evidence. • Considers arguments from both parties. • Decides the case based on law and facts. It is the heart of the judicial process, where disputes are resolved through evidence and argumentation. Public Trial: Open Court Principle (Section 153-B CPC) • General Rule: Every civil trial must be conducted in an open court where the public has access. • Purpose: To ensure transparency, fairness, and accountability. Public observation acts as a check on judicial conduct and builds trust in the system. • Exception: The court may conduct in-camera proceedings (excluding the public) if required for justice, such as in sensitive or confidential cases. 👉 Rule: Public trial is the norm, in-camera trial is the exception. Summoning and Attendance of Witnesses (Order 16 CPC) Order 16 CPC provides the procedure for securing witnesses for a civil trial. Step 1: List of Witnesses & Issue of Summons (Rule 1 & 1-A) • Parties must submit a list of witnesses within 15 days of settlement of issues. • Court may issue summons for their attendance. • Parties can also bring their witnesses without summons. • Case Law: Mange Ram v. Brij Mohan (AIR 1983 SC 925) → Court cannot refuse to examine such witnesses. Step 2: Payment of Expenses (Rule 2 & 4) • The party calling the witness must deposit travel and daily expenses within 7 days. • If unpaid, court may attach and sell movable property of the party. Step 3: Witness Present in Court May Be Examined (Rule 7) Even if not summoned, a person already present in court may be asked to give evidence. Step 4: Coercive Measures for Non-attendance (Rule 10) If a witness avoids summons: • Court may issue proclamation, arrest warrant, or attach property. • Fine up to ₹500 can also be imposed. Step 5: Court’s Suo Motu Power (Rule 14) Court can summon any witness on its own if necessary. Step 6: Party Refusing to Give Evidence (Rule 20) If a party refuses to testify, court may: • Pronounce judgment against him, or • Draw adverse inference. Summoning Prisoners (Order 16-A) • Prisoners may be summoned if their evidence is material. • Exceptions: medical issues, remand, short sentence, or state prohibition. • In such cases, evidence may be recorded on commission inside jail. Hearing of Suit & Examination of Witnesses (Order 18 CPC) Right to Begin (Rules 1–3) • General Rule: Plaintiff begins the case. • Exception: Defendant may begin if admitting facts but relying on law (e.g., limitation, jurisdiction). Example: • Plaintiff sues on a promissory note → Plaintiff must prove it. • Defendant admits note but pleads limitation → Defendant gets right to begin. Arguments (Rules 3A–3D) • Parties may give oral arguments. • Court may allow written arguments (filed under distinct headings). • Copies must be given to opposite party. • Courts may fix time-limits for oral arguments. Recording of Evidence (Rules 4–13, Order 18) Post-1999 & 2002 Amendments • Examination-in-chief → by affidavit. • Cross-examination & re-examination → oral before court/commissioner. • Court Commissioners can record evidence to save judicial time. Key Provisions: 1. Affidavit Evidence → filed with the court, copy to opposite party. 2. Withdrawal of Affidavit → allowed before cross, but admissions still binding. 3. Commissioner’s Role → records witness demeanor, submits report within 60 days. 4. Objections → recorded and decided at argument stage. 5. Fee of Commissioner → fixed by court; High Court/District Court maintains panel. Methods of Recording Evidence by Court 1. Written by Judge or under supervision. 2. Dictated by Judge (typed/recorded). 3. Mechanical Recording (audio/video with reasons). • In appealable cases → detailed recording required. • In non-appealable cases → memorandum of substance is sufficient. Other Important Rules (Order 18 CPC) • Rule 15: Evidence recorded by previous judge valid for successor judge. • Rule 16: Examination de bene esse (advance evidence if witness may not attend later). • Rule 17: Court may recall and re-examine witnesses. • Rule 18: Court may inspect property relevant to case. • Rule 19: Evidence may be recorded on commission. Conclusion The trial under CPC ensures that justice is not only done but is seen to be done. By laying down clear rules regarding public trials, summoning of witnesses, and recording of evidence, the Code safeguards transparency, accountability, and fairness in civil proceedings. For law students, judiciary aspirants, and legal professionals, a proper understanding of Order 16 and Order 18 CPC is essential, as these provisions directly impact the conduct of trials and the administration of justice. 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