DISPOSAL OF THE SUIT AT THE FIRST HEARING
1. Parties not at issue.—Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.
2. One of several defendants not at issue.—1[(1)] Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.
2[(2) Whenever a judgment is pronounced under this Rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.]
1. Rule 2 renumbered as sub-rule (1) thereof by Act No. 104 of 1976, w.e.f. 1st February, 1977.
2. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
3. Parties at issue.—(1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as herein before provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit :
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
4. Failure to produce evidence.—Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment, or may, if it thinks fit, after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues.
SUMMONING AND ATTENDANCE OF WITNESSES
1[1. List of witnesses and summons to witnesses.—(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this Rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the 2[court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].
1. Substituted by Act No. 104 of 1976, for former Rule 1, w.e.f. 1st February, 1977.
2. Substituted by Act No. 46 of 1999, S 25 (w.e.f. 1-7-2002).
1[1A. Production of witnesses without summons.—A Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.]
1. Substituted by Act No. 104 of 1976, for former Rule 1A, w.e.f. 1st February, 1977.
2. Expenses of witness to be paid into Court on applying for summons.—(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed 1[which shall not be later than seven days from the date of making application under sub-rule (4) of the rule 1], pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance.
(2) Experts.—In determining the amount payable under this Rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.
(3) Scale of expenses- Where the Court is subordinate to a High Court; regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.
2[(4) Expenses to be directly paid to witnesses- Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent.]
1. Inserted by Act No. 46 of 1999, S. 25 (w.e.f. 1-7-2002).
2. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
3. Tender of expenses to witness.—The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
4. Procedure where insufficient sum paid in.—(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.
(2) Expenses of witnesses detained more then one day- Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the removable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.
5. Time, place and purpose of attendance to be specified in summons.—Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.
6. Summons to produce document.—Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
7. Power to require persons present in Court to give evidence or produce document.—Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.
1[7A. Summons given to party for service.—(1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.
(2) The service of such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court.
(3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this Rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign and acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.
(5) Where a summons is served by a party under this Rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
8. Summons how served.—Every summons 1[under this Order, not being a summons delivered to a party for service under Rule 7A,] shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this Rule.
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
9. Time for serving summons.—Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.
10. Procedure where witness fails to comply with summons.—1[(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court-
(a) Shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or
(b) May, if the certificate of the serving officer has been so verified,
Examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.]
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which. may be imposed under Rule 12 :
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.
1. Substituted by Act No. 104 of 1976, for former Rule 1, w.e.f. 1st February, 1977.
11. If witness appears attachment may be withdrawn.—Where, at any time after the attachment of his property, such person appears and satisfies the Court.—
(a) That he did, not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and
(b) Where he has failed to attend at the time and place named in a proclamation issued under the last preceding Rule, that he had no notice of such proclamation in time to attend,
The Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.
12. Procedure if witness fails to appear.—2[(1)] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to the attached and sold or, if already attached under Rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any:
Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment.
1[(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of Rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that Rule, the Court may impose fine under sub-rule (1) of this Rule after giving notice to such person to show cause why the fine should not be imposed.]
1. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 1977.
2. Rule 21 renumbered as sub-rule (1) of that Rule by Act No. 104 of 1976, w.e.f. 1st February, 1977.
13. Mode of attachment.—The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.
14. Court may of its own accord summon as witnesses strangers to suit.—Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary 1[to examine any person, including a party to the suit] and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
15. Duty of persons summoned give evidence or produce document.—Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.
16. When they may depart.—(1) A person so summoned and attending shall, unless the Court otherwise directs, attend at each hearing until the suit has been disposed of.
(2) On the application of either party or the payment through the Court of all necessary expenses (if any), the. Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.
17. Application of Rule 10 to 13.—The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of Rule 16.
18. Procedure where witness apprehended cannot give evidence or produce document. —Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him, and, in default of his giving such bail or security, may order him to be detained in the civil prison.
19. No witness to be ordered to attend in person unless resident within certain limits.—No one shall be ordered to attend in person to give evidence unless he resides-
(a) Within the local limits of the Court’s ordinary original jurisdiction, or
(b) Without such limits but at a place less than 1[one hundred] or (where there is railway or steamer communication or other. established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than 2[five hundred kilometers] distance from the Court-house:
3[Provided that where transport by air is available between the two places mentioned in this Rule and the witness is paid the fare by air, he may be ordered to attend in person.]
1. Substituted by Act No. 104 of 1976, for the words “fifty”, w.e.f. 1st February, 1977.
2. Substituted by Act No. 104 of 1976, for the words “two hundred miles”, w.e.f. 1st February, 1977.
3. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 1977.
20. Consequence of refusal of party to give evidence when called on by Court.—Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
21. Rules as to witnesses to apply to parties summoned.—Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.
ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
1. Definitions.—In this Order, -
(a) “Detained” includes detained under any law providing for preventive detention;
(b) “Prison” includes-
(i) Any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; and
(ii) Any reformatory, borstal institution or other institution of a like nature.
2. Power to require attendance of prisoners to give evidence.—Where it appears to a Court that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the officer in charge of the prison to produce that person before the Court to give evidence:
Provided that, if the distance from the prison to the Court-house is more than twenty-five kilometres, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate.
3. Expenses to be paid into Court.—(1) Before making any order under Rule 2, the Court shall require the party at whose instance or for whose benefit the order is to be issued, to pay into Court such sum of money as appears to the Court to be sufficient to defray the expenses of the execution of the order, including the travelling and other expenses of the escort provided for the witness.
(2) Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made by the High Court in that behalf.
4. Power of State Government to exclude certain persons from the operation of Rule 2.—(1) The State Government may, at any time, having regard to the matters specified in sub-rule (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Rule 2, whether before or after the date of the order made by the State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-rule (1), the State Government shall have regard to the following matters, namely:—
(a) The nature of the offence for which, or the grounds on which, the person or class of persons have been ordered to be confined or detained in prison;
(b) The likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and
(c) The public interest, generally.
5. Officer in charge of prison to abstain from carrying out order in certain cases.—Where the person in respect of whom an order is made under Rule 2-
(a) Is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or
(b) Is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) Is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or
(d) Is a person to whom an order made by the State Government under Rule 4 applies,
The officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining.
6. Prisoners to be brought to Court in custody.—In any other case, the officer in charge of the prison shall, upon delivery of the Court’s order, cause the person named therein to be taken to the Court so as to be present at the time mentioned in such order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he is confined or detained.
7. Power to issue commission for examination of witness in prison.—(1) Where it appears to the Court that the evidence of a person confined or detained in a prison, whether within the State or elsewhere in India, is material in a suit but the attendance of such person cannot be secured under the preceding provisions of this Order, the Court may issue a commission for the examination of that person in the prison in which he is confined or detained.
(2) The provisions of Order XXVI shall, so far may be, apply in relation to the examination on commission of such person in prison as they apply in relation to the examination on commission of any other person.]
ORDER XVII
ADJOURNMENTS
1. Court may grant time and adjourn hearing.— 1[(1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.]
1. Substituted by Act No. 46 of 1999, S. 26 (w.e.f. 1-7-2002).
(2) Costs of adjournment—In every such case the Court shall fix a day for the further hearing of the suit and 1[shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit]:
2[Provided that.—
(a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.
(b) No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,
(c) The fact that the pleader of a party is engaged in another Court, shall not be, a ground for adjournment,
(d) Where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,
(e) Where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]
1. Substituted by Act No. 46 of 1999, S. 26 (w.e.f. 1-7-2002).
2. Substituted by Act No. 104 of 1976, for the previous proviso, w.e.f. 1st February, 1977.
2. Procedure if parties fail to appear on day fixed.—Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
1[Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
3. Court may proceed notwithstanding either party fails to produce evidence, etc.—Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other Act necessary to the further progress of the suit, for which time has been allowed, 1[the Court may, notwithstanding such default.—
(a) If the parties are present, proceed to decide the suit forthwith, or
(b) If the parties are, or any of them is, absent, proceed under Rule 2].
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
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 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.
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.
1[(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 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 adjournment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.]
(4) 2[* * *]
1. Inserted by Act No. 22 of 2002, S. 12 (w.e.f. 1-7-2002).
2. Sub-rule (4) omitted by Act 46 of 1999, S. 27 (w.e.f. 1-7-2002).
3. Evidence where several issues.—Where there are several issues, the burden of probing 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.
1[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.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
Provided that where documents are filed and the parties rely upon the doucments, the proof and admissibility of such doucments 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 affdavit has been furnished to 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:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit:
Provided further that in a suit tried by the High Court, the evidence shall ordinarily be recorded by the Commissioner unless the Court directs otherwise.
(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 demenaour of any witness while under examination:
(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 written extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of commissioner to record the evidence under this rule.
(7) The Court may be 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, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.]
1. Substituted by Act 22 of 2002, S. 12 (w.e.f. 1-7-2002).
1[25. 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.]
1. Substituted by Act No. 104 of 1976, for the former Rule 5, w.e.f. 1st February, 1977.
2. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
16. 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.
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
17. 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 wore evidence taken down under that Rule.
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
18. Memorandum when evidence not taken down by Judge.—Where the evidence is not taken down in writing by the Judge, 2[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,
1. The words “with the previous sanction of the G.G. in C.” omitted by Act No. 38 of 1920.
2. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
2[19. 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.
(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.]
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
2. Substituted by Act No. 104 of 1976, for former Rule 9, w.e.f. 1st February, 1977.
10. Any particular question and answer way he 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.
111. 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.
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
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.
2[113. 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.]
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
2. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
[114. Judge unable to make such memorandum to record reasons of his inability: Repealed by the Code of Civil Procedure (Amendment) Act, 1976, w.e.f 1st. February, 1977 ]
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
115. 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.
1. The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, 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. 4 of 1925)
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.— 1[* * *].
1. Omitted by Act No. 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 1[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].
2[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. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
2. Inserted by Act No. 46 of 1999, S. 27 (w.e.f. 1-7-2002).
AFFIDAVITS
1. Power to order any point to be proved by affidavit.—Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
2. Power to order attendance of deponent for cross-examination.—(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination f the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
3. Matters to which affidavits shall be confined.—(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
JUDGMENT AND DECREE
1[21. Judgment when pronounced.—3[(1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavor shall be made by the court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day to fixed shall be given to the parties or their pleaders.]
4[(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment, 5[* * *].
(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially empowered by she High Court in this behalf:
Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record.]
1. Substituted by Act No. 66 of 1956, for former Rule 1.
2. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh. See the Oudh Courts Act, 1925 (U.P. 4 of 1925)
3. Substituted by Act 22 of 2002, S. 13 (w.e.f. 1-7-2002).
4. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
5. Certain words ommited by Act No. 46 of 1999, S. 28 (w.e.f. 1-7-2002).
2. Power to pronounce judgment written by judge’s predecessor.—1[A Judge shall] pronounces a judgment written, but not pronounced, by his predecessor.
1. Substituted by Act No. 104 of 1976, for the words “A Judge may”, w.e.f. 1st. February, 1977.
13. Judgment to be signed.—The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added, to save as provided by Section 152 or on review.
1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh. See the Oudh Courts Act, 1925 (U.P. 4 of 1925)
14. Judgments of Small Cause Courts.— (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
(2) Judgments of other Courts- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh. See the Oudh Courts Act, 1925 (U.P. 4 of 1925)
15. Court to state its decision on each issue.— In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh. See the Oudh Courts Act, 1925 (U.P. 4 of 1925)
1[5A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders.— Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in Court as to the Court to which an appeal lies and the period of limitation for the filing of such appeal and place on record the. information so given to the parties.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
6. Contents of decree.— (1) The decree shall agree with the judgment; it shall contain the number of the suit, the 1[names and descriptions of the parties, their registered addresses,] and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what properly and in what proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.
1. Substituted by Act No. 104 of 1976, for the words “names and descriptions of the parties”, w.e.f. 1st. February, 1977.
1[6A. Preparation of decree.—(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree in drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.
6B. Copies of judgments when to be made available.—Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.]
1. Substituted by Act No. 46 of 1999, S. 28 (w.e.f. 1-7-2002).
7. Date of decree.— The decree shall bear the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.
8. Procedure where Judge has vacated office before signing decree.— Where a Judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.
9. Decree for recovery of immovable property.— Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.
10. Decree for delivery of movable property.— Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be head.
11. Decree may direct payment by instalments.— (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason 1[incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that] payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.
(2) Order, after decree, for payment by instalments.— After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.
1. Substituted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
12. Decree for possession and mesne profits. (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) For the possession of the property;
1[(b) For the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) For the mesne profits or directing an inquiry as to such mesne profits;]
(c) Directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) The delivery of possession to the decree-holder,
(ii) The relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) The expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be profits shall be passed in accordance with the result of such inquiry.
1. Substituted by Act No. 104 of 1976, for former clause (b), w.e.f. 1st. February, 1977.12. Decree for possession and mesne profits
1[12A. Decree for specific performance of contract for the sale or lease of immovable property.— Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by the purchaser or lessee, it shall specify the period within which the
1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
13. Decree in administration suit.— (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration-suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
14. Decree in pre-emption suit.— (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-
(a) Specify a day on or before which the purchase-money shall be so paid, and
(b) Direct that on payment into Court of such purchase-money, together with the costs (if any) decrees against the plaints, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accused from the date of such payment, but that, if, the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct. -
(a) If and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) If and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
15. Decree in suit for dissolution of partnership.— Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.
16. Decree in suit for account between principal and agent.— In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the account of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.
17. Special directions as to accounts.— The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima fade evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.
18. Decree in suit for partition of property or separate possession of a share therein.— Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then.-
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
19. Decree when set-off or counter-claim is allowed.— (1) Where the defendant has been allowed a set-off 1[or counter-claim] against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum, which appears to be due to either party.
(2) Appeal from decree relating to set-off or counter-claim.— An decree passed in a suit in which a set-off 1[or counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off 1 [or counter-claim] had been claimed.
(3) The provisions of this Rule shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.
1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
20. Certifies copies of judgment and decree to be furnished.—Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense.
COSTS
1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.
1. Provision relating to certain items.—Without prejudice to the generality of the provisions of this Code relating to costs, the Court may award costs in respect of,
(a) Expenditure incurred for the giving of any notice required to be given by law before the institution of the suit ;
(b) Expenditure incurred on any notice which, through not required to be given by law, has been given by any party to the suit to any other party before the institution of the suit;
(c) Expenditure incurred on the typing, writing or printing of pleadings filed by any party;
(d)Charges paid by a party for inspection of the records of the Court for the purposes of the suit;
(e) Expenditure incurred by a party for producing witnesses, even though not summoned through Court and
(f) In the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees which are required to be filed along with the memorandum of appeal.
2. Costs to be awarded in accordance with the rules made by High Court.—The award of costs under this Rule shall be in accordance with such rules as the High Court may make in that behalf.]
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.