Procedure of recording of evidence in civil case
Court cases are always decided on the basis of the evidence recorded in the case. No effective judgment can be passed by the court without recording and appreciating the evidence fortifying the facts of the case. The trial of a civil case starts after framing of issues with the process of recording of evidence. Evidence consists of two types’ i.e oral evidence and Documentary evidence. Witnesses summoned/examined by both parties to prove their respective cases. The witnesses make only the oral deposition without referring to any documents while other witness depose regarding the document written by them, attested by them or signatures/writing identified by them while other witnesses depose regarding the document scribed by them or attested by them or by identifying the signatures/writing of the executants/witnesses of these documents. The examination of a witness has been provided in section 137 of the evidence Act, 1872 while cross examination of a witness is provided in section 138 of the evidence Act.
The evidence of a witness consist of three parts:-
- Examination in chief is recorded by the party calling the witness
- Witness is cross examined by the party calling the witness
- Re-examination can be conducted with the permission of the court in case there crops up some ambiguity or a new fact is brought in cross examination.
EXAMINATION IN CHIEF
Prior to the amendment of court of Civil procedure, the examination of chief of the witness was recorded in open court in presence of the opposite party. The scenario has changed after the amendment of the Code of Civil Procedure in the year 2002. Under the amended provision of order 18 rule 4 CPC, the examination in chief has to be tendered by the party calling the witness in the form of a duly sworn affidavit.This Practice has been adopted to save the time of the court in recording the examination in chief in open court.
Cross examination is a powerful and a valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of a story. The extent of its effectiveness, no doubt depends on the dexterity of them wielder of this weapon. But every cross examiner should and can if he is careful and indicate in cross examination, whatever part of the evidence given in the examination in chief is challenged and on omission to do will lead to the inference that the evidence is accepted subject of course to its being assailed and inherently improbable.
EFFECT OF AMENDMENT OF THE CODE OF CIVIL PROCEDURE
After the amendment of code of civil procedure, the task of recording the cross examination has been relegated to the local commissioner appointed for the purpose. The local commissioner has no power/control to decide the admissibility of the question. His job is clerical and to mechanically record the answer to the question. As a consequence thereof, lengthy, prolix cross examination is allowed to be recorded which is seldom referred to during the course of arguments. The expenses of the local commissioner for getting the cross examination recorded is postponed to several sittings putting unnecessary financial burden on the party. Where commission is issued for examination of a witness, the commission has no power to disallow question, he considers irrelevant as he cannot be called a judge within section 138 of the Evidence Act.
The latest trend which has started is that the witness in response to the answer to specific question tends to repeat the facts already stated in the examination in chief or omitted to be stated in chief. Further such volunteering information/evidence leads to asking volley of question to nullify the effect of such volunteering information. When objection is taken in this respect by the cross examiner, normally judge allows the same to be recorded on the ground that it will be seen / adjudicated at the time of final arguments .Such a deferment is fraught with legal consequences. Often no decision is given in the final judgment.
It is crystal clear that no volunteering information should be allowed to be recorded when an objection is being taken by the opposite party . Judicial file should not be overburdened by such uncalled utterances. In case, the question is ambiguous and is capable of admitting two answers, only then, the question should be recorded and answer may also be recorded separately.