The power to amend evidence is not expressly provided under Order XVIII of CPC. The procedure provided under Rule 16 of Order XVIII cannot be construed as power conferred on the Court to undertake ex post facto corrections of the recorded evidence. In the considered view of this Court, Rule 16 deals with power of the Court to examine witnesses immediately. Rule 16(3) refers to the procedure set out in Rules 4 to 6 to and if a correction is pointed out, the Judge is empowered to carry out the corrections, then take the signature of the party and then certify that evidence is recorded. A contemporaneous omission or correction pointed out before signing the evidence has the advantage of drawing the attention of the Court which has recorded the evidence, the counsel present when the evidence was recorded do their part and then and there a bona fide correction can be attended by the Court. On the other hand, if the procedure stipulated in sub-Rule 3 of Rule 16 is extended for correction of evidence available on record, in the considered view of this Court, such procedure leads to an anomalous situation as pointed out by this Court in the decision referred to supra.
AP & TELANGANA HIGH COURT
HON'BLE SRI JUSTICE S.V.BHATT
C.R.P. No.3917 OF 2016
ORDER:
Heard Mr.C.Prakash Reddy for revision petitioners and
Mr.Virupaksha Dattatreya Gouda for respondent.
Defendants in O.S.No.56 of 2014 in the Court of Senior Civil
Judge, Atmakur are the revision petitioners. The revision is directed
against the order in I.A.No.172 of 2016 dated 18.07.2016. The
Impugned order in the revision is very brief and reads thus:
“I.A.No.172/16 is allowed. Accordingly, the word “not” is
added after the portion of sentence “The writing present
in Ex.B1 calculation sheet is” in the impugned sentence
“The writing present in Ex.B1 calculation sheet is that of
mine. Call on 19.07.2016”
The circumstances relevant for the disposal of the revision are
as follows:
The respondent filed O.S.No.56 of 2014 to recover
Rs.2,61,120/- from the revision petitioners herein. The revision
petitioners as legal representatives of debtor late Kunduru Siva
Reddy are arrayed as parties to the suit. The suit is based on
promissory notes dated 22.08.2012 said to have been executed by
late Kunduru Siva Reddy. The revision petitioners filed written
statement and are contesting the suit in all fours. On 05.06.2015, the
chief affidavit of P.W.1/respondent under Order XVIII Rule 4 of Code
of Civil Procedure (CPC) was affirmed. On 27.11.2013, the
2
respondent entered the witness box, chief affidavit was taken on
file and Exs.A.1 to A.19 were marked. On 02.12.2015, 08.12.2015
and 09.12.2015, the respondent was cross examined and his
evidence was recorded and closed as prescribed by Order XVIII
Rule 4 of CPC. On 06.06.2016, the respondent filed I.A. No.172 of
2016 under Order XVIII Rule 16 (3) read with Section 151 CPC and
the prayer in the instant I.A. reads thus:
“For the reasons stated in the accompanying affidavit, it is
therefore prayed that the Hon’ble Court may be pleased to
correct schedule mentioned item No.1 statement occurred
in the deposition of PW1, as per Or.18, rule 16(3) read with
under sec.151 C.P.C. as the Hon’ble court has got ample
power to rectify the mistakes that was crept in as shown in
the item No.2 of Schedule, in the interest of justice.
Schedule:
I. PW1- Deposition-Cross Examination dt: 08-12-2015
(Page 2 of cross examination) Line:4th line from bottom;
The writing present in Ex.B1 calculation sheet is that
of mine.
II.The proposed correction -
The writing present in Ex.B1 calculation sheet is not
that of mine.“
The revision petitioners opposed these prayers.
The trial Court through the order impugned in the C.R.P.
allowed I.A. No.172 of 2016. Hence, the revision.
At the outset, it is to be remarked that the order impugned in
the revision is not a speaking order and the reasons stated by the
learned Judge are too succinct and the order does not also
convey what the trial Court intended to permit P.W.1/respondent
by allowing this application. On this ground alone, the order
impugned in the revision could be set aside, but learned counsel
3
appearing for the parties have addressed arguments on the
jurisdiction, scope and power of Court on the one hand to correct
the evidence recorded by the Court and on the other that the
Court does not have power to correct evidence recorded in the
open Court signed by the party and thereafter certified by the
Judge recording the evidence. Hence, the prayer in I.A.No.172 of
2016 is on merits and is considered by this Court from the material
available on record.
Mr. C.Prakash Reddy for revision petitioners contends that the
prayer in I.A. No.172 of 2016 is completely an afterthought and the
chronology of events from 05.06.2016 till 09.12.2015 would go
to show that the instant application is filed only to erase impact
of admission allegedly given by P.W.1/respondent on Ex.B.1
calculation memo relied upon by the revision petitioners.
He contends that Order XVIII Rule 16 of CPC has no application,
much less Section 151 has conferred jurisdiction on the trial Court to
correct the evidence recorded in the presence of counsel, signed
by a party and certified by the Court. He further contends that if
the prayer for amendment of evidence recorded in the open Court
is accepted, the same amounts to treating evidence on par with
pleadings. He contends that the Court while recording evidence is
bound by the procedure stipulated under Sub-Rules 4, 5, 6 of Order
XVIII. The corrections of any sentence which adversely affect the
opposite party cannot and could not be undertaken. He places
strong reliance upon the provisions referred to above and prays for
4
setting aside the order impugned in the revision and dismiss I.A.
No.172 of 2016.
Mr.Virupaksha Dattatreya Gouda for respondent contends
that the P.W.1/respondent on 08.12.2015, while answering question
as to who has scribed Ex.B.1, answered that the writing in Ex.B.1
calculation sheet is not that of mine i.e., respondent herein, but the
Court while recording the evidence has omitted to record the word
“not”. The sentence as recorded can be treated as admission by
petitioners. The respondent having noticed the omission in
recording the cross examination portion has moved the instant
application for the prayer referred to above. While admitting that
there is no explicit provision to amend or correct oral evidence still
he contends that there is no prohibition in the Code for correcting
clerical, arithmetical or dates in the evidence recorded by the
Court. The power to correct the evidence recorded is unavaibale
to Court. The party to a lis when evidence is not properly recorded
suffers irreparable injury and hardship. He places reliance upon the
decisions in Mir Mohd. Omar v. State of West Bengal1 and Bankim
Behari Das v. Md.Hasen Ali2. The learned counsel appearing for
respondent fairly states that there is no direct provision or authority
on the power of trial Court ex post facto to correct the “evidence”
recorded under Order XVIII of CPC. From the scheme of Code, he
contends that such power can be inferred and the Officer, who has
recorded the evidence if is satisfied about the mistake pointed out
by applicant that the word “not” is omitted while recording
evidence, the Court can correct the evidence and no exception
1 (1989) 4 SCC 436
2 MANU/GH/0407/2010
5
can be taken. He does not dispute that Order XVIII Rule 16 does not
fit into the prayer of respondent, however, Rule 16 of Order XVIII can
be referred for the limited purpose of appreciating and applying
the power of Court to correct the evidence already recorded.
In reply to the challenge that the order impugned is brief and
without reasons, learned counsel submits that the Court which is
conducting the trial has substantially accepted the reasons stated
by the respondent and accordingly allowed the application and
the lack of reasons cannot be a ground for either setting aside or
independently considering the matter by this Court.
I have heard the counsel for the parties, noted the
submissions and perused the material on record in the revision
petition.
The point for consideration is whether the trial Court has
jurisdiction to correct evidence and insert word “not” in the cross
examination conducted on 08.12.2015?
Let me examine the provisions dealing with recording of
evidence in C.P.C.
Order XVIII of CPC deals with hearing of suit and examination
of witnesses. Hearing and examination of witnesses are normally
done in open Court by the Judge presiding the Court. Rules 4, 5
and 6 of Order XVIII read thus:
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.
6
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.
(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:
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
(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 16,16-A, 17 and 18 of Order
XXVI, insofar as they are applicable, shall apply to the
issue, execution and return of such commission under
this 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.
6. When deposition to be interpreted:- Where the evidence
is taken down in 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.
According to Sub-Rule 2 of Rule 4, the evidence of witness in
attendance shall be taken either by the Court or by the
Commissioner appointed by it. Sub-Rule 3 of Rule 4 provides for
recording evidence in writing or mechanically in the presence of
the Judge or the Commissioner as the case may be. Therefore, the
evidence recorded in writing or mechanically in the Court in the
presence of the Judge or as directed by the Court by the
Commissioner is treated as evidence. Rule 5 deals with the
procedure for taking evidence in appealable cases. Under Rule 5
(a) the recording of evidence is in the language of Court; in writing
by, or in the presence and under the personal direction and
8
superintendence of Judge. (emphasis added). Under Clause (a) (ii),
evidence shall be from the dictation of the Judge directly on a
Typewriter. Clause (b) deals with the evidence recorded
mechanically in the presence of the Judge. Under Rule 6, the
deposition is interpreted where the evidence is taken down in a
language different from that in which it is given by a witness and
the witness does not understand the language in which it is
recorded. Therefore, it means that the evidence recorded in English
is interpreted and explained to the witness in vernacular.
Thereafter, the witness signs on the evidence and the Judge in
whose presence evidence was recorded, certifies that the
evidence has been recorded in his presence. In other case, where
evidence is recorded by Court Commissioner, he certifies the
recording of the evidence in the form provided by Rules 5 and 6 of
Order XVIII. Once the signature of the witness is over, and the Court
is satisfied with the recording the evidence in open Court, the same
is treated as evidence of a party. Rules 4 to 6 of Order XVIII do not
provide for correction of statements in cross examination which is
pending before Court as evidence. In other words, once the
signature of the party/witness is completed and the Court certifies
the same, the statement so recorded becomes evidence. The
respondent either in the affidavit filed by him or before this Court
does not point out deviation of the procedure presently discussed
by the Court. In spite of it, a prayer for amendment or inclusion of a
word in the evidence recorded by a Judge in the open Court on
08.12.2015 is made and accepted. Order XVIII dealing with hearing
and recording of evidence provides for all stages in the recording
9
of evidence namely persons who have right to commence the trial,
right to reserve to lead evidence on issues covered by Rule 3(a) of
the Rules and rebuttal evidence, mode and manner of recording
evidence in the Court by a Judge or Commissioner as directed by
the Court. The purpose of oral evidence and the object of cross
examination cannot and could not be lost sight by the trial Court
while accepting request for amendment of evidence already
recorded, signed and certified by it. At this juncture, reference to
decision in Rohit Steels Pvt. Ltd., Secunderabad v. Poddar Projects
Ltd.,Hyderabad3 is useful and the relevant portion reads thus.
“4. It is not as if only those persons, who know English,
alone are permitted to depose as witnesses. In fact,
majority of the witnesses depose in vernacular languages
and the deposition is translated into English, by the
Court. The presence of the Counsel for parties ensures
that the accurate translated version of the deposition is
recorded. The discrepancies, if any, are corrected at
more stages than one. Firstly, when the dictation takes
place, the concerned parties or their Counsel can
certainly point out the real purport of the statement of the
witness. Secondly, before the recorded deposition is
signed, witnesses as well as the concerned Counsel are
supposed to go through it. The deposition acquires its
evidentiary value only, when it is signed by the witness.
Once the witness has chosen to sign it, he is supposed to
have been satisfied about its accuracy and he cannot be
permitted to turn around and complain of any inaccuracy.
5. Permitting the correction of deposition, at a later point
of time, is prone to take away the importance of cross
examination. It may reflect on the capacity of the
Presiding Officer also. If the sentences, in a deposition,
are to be corrected, on the plea that it does not represent
the correct translation, many admissions or crucial
sentences, which are found to be against the interest of a
particular party, can be overcome through this process.
3 2007 (3) ALD 281
10
Further, if any accidental omissions have taken place and
the party had lost the chance of correcting them through
re-examination, the opportunity of leading further
evidence to present the actual purport, is always there.”
The Code lays emphasis for conduct of trial in open Court
and the public trial in open Court is undoubtedly essential for the
healthy, objective and fair administration of justice. As trial is
conducted in public gaze, naturally checks judicial caprice and
vagaries. This is one of the reasons for enhancing public
confidence in administration of justice by Courts. Openness and
publicity constitute the very soul of administration of justice. Open
Court conduct of trial in practice keeps the Judge trying under trial.
Therefore, the Code has put in place all provisions in place for
recording evidence and the sanctity attached to such statement
after the same is recorded as evidence.
Pleadings in a case at best can be treated as result of
instruction given by a party and settled by his counsel. Procedure
enables amendment to pleadings subject to a few limitations. On
the other hand, the witness deposes in open court on oath, in the
presence of Advocates and recorded by the Judge as evidence,
presumed to have been interpreted correctly, opportunity is
available to go through the recorded evidence, before it is actually
signed by witness and certified by the Court. These steps have
given sanctity to statements made in court by a witness. The
evidence was recorded is appreciated factually and legally under
the provisions of the Evidence Act and conclusions are recorded.
Therefore, for slight or strong reasons, the recorded evidence ought
11
not to be amended by the Court even at the instance of a party
making the statements.
The power to amend evidence is not expressly provided
under Order XVIII of CPC. The procedure provided under Rule 16 of
Order XVIII cannot be construed as power conferred on the Court
to undertake ex post facto corrections of the recorded evidence.
In the considered view of this Court, Rule 16 deals with power of the
Court to examine witnesses immediately. Rule 16(3) refers to the
procedure set out in Rules 4 to 6 to and if a correction is pointed
out, the Judge is empowered to carry out the corrections, then take
the signature of the party and then certify that evidence is
recorded. A contemporaneous omission or correction pointed out
before signing the evidence has the advantage of drawing the
attention of the Court which has recorded the evidence, the
counsel present when the evidence was recorded do their part and
then and there a bona fide correction can be attended by the
Court. On the other hand, if the procedure stipulated in sub-Rule 3
of Rule 16 is extended for correction of evidence available on
record, in the considered view of this Court, such procedure leads
to an anomalous situation as pointed out by this Court in the
decision referred to supra. In the case on hand, the insertion of
word “not” at the instance of respondent in the impugned
sentence is illegal and secondly contrary to the explicit procedure
provided under Rules 4 and 6 of Order XVIIII of CPC and not within
the jurisdiction of the Court.
12
The decisions relied upon by the counsel for respondent are
not directly on the point and the points decided therein are not
having persuasive precedence in deciding the question that fell for
consideration in this revision.
The revision is, accordingly, allowed and order impugned in
the revision is set aside. No order as to costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________
S. V. BHATT, J
Date:17.10.2016
Note:
L.R. Copy to be marked.
B/o.
Stp
HON'BLE SRI JUSTICE S.V.BHATT
C.R.P. No.3917 OF 2016
ORDER:
Heard Mr.C.Prakash Reddy for revision petitioners and
Mr.Virupaksha Dattatreya Gouda for respondent.
Defendants in O.S.No.56 of 2014 in the Court of Senior Civil
Judge, Atmakur are the revision petitioners. The revision is directed
against the order in I.A.No.172 of 2016 dated 18.07.2016. The
Impugned order in the revision is very brief and reads thus:
“I.A.No.172/16 is allowed. Accordingly, the word “not” is
added after the portion of sentence “The writing present
in Ex.B1 calculation sheet is” in the impugned sentence
“The writing present in Ex.B1 calculation sheet is that of
mine. Call on 19.07.2016”
The circumstances relevant for the disposal of the revision are
as follows:
The respondent filed O.S.No.56 of 2014 to recover
Rs.2,61,120/- from the revision petitioners herein. The revision
petitioners as legal representatives of debtor late Kunduru Siva
Reddy are arrayed as parties to the suit. The suit is based on
promissory notes dated 22.08.2012 said to have been executed by
late Kunduru Siva Reddy. The revision petitioners filed written
statement and are contesting the suit in all fours. On 05.06.2015, the
chief affidavit of P.W.1/respondent under Order XVIII Rule 4 of Code
of Civil Procedure (CPC) was affirmed. On 27.11.2013, the
2
respondent entered the witness box, chief affidavit was taken on
file and Exs.A.1 to A.19 were marked. On 02.12.2015, 08.12.2015
and 09.12.2015, the respondent was cross examined and his
evidence was recorded and closed as prescribed by Order XVIII
Rule 4 of CPC. On 06.06.2016, the respondent filed I.A. No.172 of
2016 under Order XVIII Rule 16 (3) read with Section 151 CPC and
the prayer in the instant I.A. reads thus:
“For the reasons stated in the accompanying affidavit, it is
therefore prayed that the Hon’ble Court may be pleased to
correct schedule mentioned item No.1 statement occurred
in the deposition of PW1, as per Or.18, rule 16(3) read with
under sec.151 C.P.C. as the Hon’ble court has got ample
power to rectify the mistakes that was crept in as shown in
the item No.2 of Schedule, in the interest of justice.
Schedule:
I. PW1- Deposition-Cross Examination dt: 08-12-2015
(Page 2 of cross examination) Line:4th line from bottom;
The writing present in Ex.B1 calculation sheet is that
of mine.
II.The proposed correction -
The writing present in Ex.B1 calculation sheet is not
that of mine.“
The revision petitioners opposed these prayers.
The trial Court through the order impugned in the C.R.P.
allowed I.A. No.172 of 2016. Hence, the revision.
At the outset, it is to be remarked that the order impugned in
the revision is not a speaking order and the reasons stated by the
learned Judge are too succinct and the order does not also
convey what the trial Court intended to permit P.W.1/respondent
by allowing this application. On this ground alone, the order
impugned in the revision could be set aside, but learned counsel
3
appearing for the parties have addressed arguments on the
jurisdiction, scope and power of Court on the one hand to correct
the evidence recorded by the Court and on the other that the
Court does not have power to correct evidence recorded in the
open Court signed by the party and thereafter certified by the
Judge recording the evidence. Hence, the prayer in I.A.No.172 of
2016 is on merits and is considered by this Court from the material
available on record.
Mr. C.Prakash Reddy for revision petitioners contends that the
prayer in I.A. No.172 of 2016 is completely an afterthought and the
chronology of events from 05.06.2016 till 09.12.2015 would go
to show that the instant application is filed only to erase impact
of admission allegedly given by P.W.1/respondent on Ex.B.1
calculation memo relied upon by the revision petitioners.
He contends that Order XVIII Rule 16 of CPC has no application,
much less Section 151 has conferred jurisdiction on the trial Court to
correct the evidence recorded in the presence of counsel, signed
by a party and certified by the Court. He further contends that if
the prayer for amendment of evidence recorded in the open Court
is accepted, the same amounts to treating evidence on par with
pleadings. He contends that the Court while recording evidence is
bound by the procedure stipulated under Sub-Rules 4, 5, 6 of Order
XVIII. The corrections of any sentence which adversely affect the
opposite party cannot and could not be undertaken. He places
strong reliance upon the provisions referred to above and prays for
4
setting aside the order impugned in the revision and dismiss I.A.
No.172 of 2016.
Mr.Virupaksha Dattatreya Gouda for respondent contends
that the P.W.1/respondent on 08.12.2015, while answering question
as to who has scribed Ex.B.1, answered that the writing in Ex.B.1
calculation sheet is not that of mine i.e., respondent herein, but the
Court while recording the evidence has omitted to record the word
“not”. The sentence as recorded can be treated as admission by
petitioners. The respondent having noticed the omission in
recording the cross examination portion has moved the instant
application for the prayer referred to above. While admitting that
there is no explicit provision to amend or correct oral evidence still
he contends that there is no prohibition in the Code for correcting
clerical, arithmetical or dates in the evidence recorded by the
Court. The power to correct the evidence recorded is unavaibale
to Court. The party to a lis when evidence is not properly recorded
suffers irreparable injury and hardship. He places reliance upon the
decisions in Mir Mohd. Omar v. State of West Bengal1 and Bankim
Behari Das v. Md.Hasen Ali2. The learned counsel appearing for
respondent fairly states that there is no direct provision or authority
on the power of trial Court ex post facto to correct the “evidence”
recorded under Order XVIII of CPC. From the scheme of Code, he
contends that such power can be inferred and the Officer, who has
recorded the evidence if is satisfied about the mistake pointed out
by applicant that the word “not” is omitted while recording
evidence, the Court can correct the evidence and no exception
1 (1989) 4 SCC 436
2 MANU/GH/0407/2010
5
can be taken. He does not dispute that Order XVIII Rule 16 does not
fit into the prayer of respondent, however, Rule 16 of Order XVIII can
be referred for the limited purpose of appreciating and applying
the power of Court to correct the evidence already recorded.
In reply to the challenge that the order impugned is brief and
without reasons, learned counsel submits that the Court which is
conducting the trial has substantially accepted the reasons stated
by the respondent and accordingly allowed the application and
the lack of reasons cannot be a ground for either setting aside or
independently considering the matter by this Court.
I have heard the counsel for the parties, noted the
submissions and perused the material on record in the revision
petition.
The point for consideration is whether the trial Court has
jurisdiction to correct evidence and insert word “not” in the cross
examination conducted on 08.12.2015?
Let me examine the provisions dealing with recording of
evidence in C.P.C.
Order XVIII of CPC deals with hearing of suit and examination
of witnesses. Hearing and examination of witnesses are normally
done in open Court by the Judge presiding the Court. Rules 4, 5
and 6 of Order XVIII read thus:
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.
6
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.
(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:
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
(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 16,16-A, 17 and 18 of Order
XXVI, insofar as they are applicable, shall apply to the
issue, execution and return of such commission under
this 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.
6. When deposition to be interpreted:- Where the evidence
is taken down in 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.
According to Sub-Rule 2 of Rule 4, the evidence of witness in
attendance shall be taken either by the Court or by the
Commissioner appointed by it. Sub-Rule 3 of Rule 4 provides for
recording evidence in writing or mechanically in the presence of
the Judge or the Commissioner as the case may be. Therefore, the
evidence recorded in writing or mechanically in the Court in the
presence of the Judge or as directed by the Court by the
Commissioner is treated as evidence. Rule 5 deals with the
procedure for taking evidence in appealable cases. Under Rule 5
(a) the recording of evidence is in the language of Court; in writing
by, or in the presence and under the personal direction and
8
superintendence of Judge. (emphasis added). Under Clause (a) (ii),
evidence shall be from the dictation of the Judge directly on a
Typewriter. Clause (b) deals with the evidence recorded
mechanically in the presence of the Judge. Under Rule 6, the
deposition is interpreted where the evidence is taken down in a
language different from that in which it is given by a witness and
the witness does not understand the language in which it is
recorded. Therefore, it means that the evidence recorded in English
is interpreted and explained to the witness in vernacular.
Thereafter, the witness signs on the evidence and the Judge in
whose presence evidence was recorded, certifies that the
evidence has been recorded in his presence. In other case, where
evidence is recorded by Court Commissioner, he certifies the
recording of the evidence in the form provided by Rules 5 and 6 of
Order XVIII. Once the signature of the witness is over, and the Court
is satisfied with the recording the evidence in open Court, the same
is treated as evidence of a party. Rules 4 to 6 of Order XVIII do not
provide for correction of statements in cross examination which is
pending before Court as evidence. In other words, once the
signature of the party/witness is completed and the Court certifies
the same, the statement so recorded becomes evidence. The
respondent either in the affidavit filed by him or before this Court
does not point out deviation of the procedure presently discussed
by the Court. In spite of it, a prayer for amendment or inclusion of a
word in the evidence recorded by a Judge in the open Court on
08.12.2015 is made and accepted. Order XVIII dealing with hearing
and recording of evidence provides for all stages in the recording
9
of evidence namely persons who have right to commence the trial,
right to reserve to lead evidence on issues covered by Rule 3(a) of
the Rules and rebuttal evidence, mode and manner of recording
evidence in the Court by a Judge or Commissioner as directed by
the Court. The purpose of oral evidence and the object of cross
examination cannot and could not be lost sight by the trial Court
while accepting request for amendment of evidence already
recorded, signed and certified by it. At this juncture, reference to
decision in Rohit Steels Pvt. Ltd., Secunderabad v. Poddar Projects
Ltd.,Hyderabad3 is useful and the relevant portion reads thus.
“4. It is not as if only those persons, who know English,
alone are permitted to depose as witnesses. In fact,
majority of the witnesses depose in vernacular languages
and the deposition is translated into English, by the
Court. The presence of the Counsel for parties ensures
that the accurate translated version of the deposition is
recorded. The discrepancies, if any, are corrected at
more stages than one. Firstly, when the dictation takes
place, the concerned parties or their Counsel can
certainly point out the real purport of the statement of the
witness. Secondly, before the recorded deposition is
signed, witnesses as well as the concerned Counsel are
supposed to go through it. The deposition acquires its
evidentiary value only, when it is signed by the witness.
Once the witness has chosen to sign it, he is supposed to
have been satisfied about its accuracy and he cannot be
permitted to turn around and complain of any inaccuracy.
5. Permitting the correction of deposition, at a later point
of time, is prone to take away the importance of cross
examination. It may reflect on the capacity of the
Presiding Officer also. If the sentences, in a deposition,
are to be corrected, on the plea that it does not represent
the correct translation, many admissions or crucial
sentences, which are found to be against the interest of a
particular party, can be overcome through this process.
3 2007 (3) ALD 281
10
Further, if any accidental omissions have taken place and
the party had lost the chance of correcting them through
re-examination, the opportunity of leading further
evidence to present the actual purport, is always there.”
The Code lays emphasis for conduct of trial in open Court
and the public trial in open Court is undoubtedly essential for the
healthy, objective and fair administration of justice. As trial is
conducted in public gaze, naturally checks judicial caprice and
vagaries. This is one of the reasons for enhancing public
confidence in administration of justice by Courts. Openness and
publicity constitute the very soul of administration of justice. Open
Court conduct of trial in practice keeps the Judge trying under trial.
Therefore, the Code has put in place all provisions in place for
recording evidence and the sanctity attached to such statement
after the same is recorded as evidence.
Pleadings in a case at best can be treated as result of
instruction given by a party and settled by his counsel. Procedure
enables amendment to pleadings subject to a few limitations. On
the other hand, the witness deposes in open court on oath, in the
presence of Advocates and recorded by the Judge as evidence,
presumed to have been interpreted correctly, opportunity is
available to go through the recorded evidence, before it is actually
signed by witness and certified by the Court. These steps have
given sanctity to statements made in court by a witness. The
evidence was recorded is appreciated factually and legally under
the provisions of the Evidence Act and conclusions are recorded.
Therefore, for slight or strong reasons, the recorded evidence ought
11
not to be amended by the Court even at the instance of a party
making the statements.
The power to amend evidence is not expressly provided
under Order XVIII of CPC. The procedure provided under Rule 16 of
Order XVIII cannot be construed as power conferred on the Court
to undertake ex post facto corrections of the recorded evidence.
In the considered view of this Court, Rule 16 deals with power of the
Court to examine witnesses immediately. Rule 16(3) refers to the
procedure set out in Rules 4 to 6 to and if a correction is pointed
out, the Judge is empowered to carry out the corrections, then take
the signature of the party and then certify that evidence is
recorded. A contemporaneous omission or correction pointed out
before signing the evidence has the advantage of drawing the
attention of the Court which has recorded the evidence, the
counsel present when the evidence was recorded do their part and
then and there a bona fide correction can be attended by the
Court. On the other hand, if the procedure stipulated in sub-Rule 3
of Rule 16 is extended for correction of evidence available on
record, in the considered view of this Court, such procedure leads
to an anomalous situation as pointed out by this Court in the
decision referred to supra. In the case on hand, the insertion of
word “not” at the instance of respondent in the impugned
sentence is illegal and secondly contrary to the explicit procedure
provided under Rules 4 and 6 of Order XVIIII of CPC and not within
the jurisdiction of the Court.
12
The decisions relied upon by the counsel for respondent are
not directly on the point and the points decided therein are not
having persuasive precedence in deciding the question that fell for
consideration in this revision.
The revision is, accordingly, allowed and order impugned in
the revision is set aside. No order as to costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________
S. V. BHATT, J
Date:17.10.2016
Note:
L.R. Copy to be marked.
B/o.
Stp
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