Evidence Recorded — Plaintiff's Witnesses (PW), Defendant's Witnesses (DW)

After the issues are framed, the suit moves into its decisive phase: the recording of evidence. In the body of a civil judgment, this is the part that catalogues every witness the plaintiff produced (the PWs) and every witness the defendant produced (the DWs), the documents exhibited through them, and the substance of what survived cross-examination. A judge who narrates this stage badly — listing witnesses without telling the reader what each deposed, or recording exhibits without saying what they prove — writes a judgment that an appellate court cannot follow. This chapter explains how the evidence section is built, the governing law under Order 18 of the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872, and the drafting discipline that turns a heap of depositions into a coherent factual record.

Where the Evidence Section Sits in the Judgment

The recording of evidence is the engine room of the trial, but in the written judgment it appears as a discrete, identifiable block sitting between the parties' pleadings and the court's discussion of issues. Having set out the plaintiff's case and the defendant's case, and after framing the issues, the judge records what evidence the parties led to discharge their respective burdens. This is a narrative of the trial as it actually unfolded, not the judge's appreciation of it — that comes later, issue by issue.

The convention is rigid and useful: witnesses examined for the plaintiff are numbered PW-1, PW-2 and so on (Plaintiff's Witness), and witnesses examined for the defendant are DW-1, DW-2 and so on (Defendant's Witness). Documents are marked as exhibits — Exhibit P-1, P-2 for the plaintiff's documents and Exhibit D-1, D-2 for the defendant's, with court exhibits sometimes marked separately. A judgment that respects this taxonomy lets any reader — the parties, the appellate bench, an examiner — trace a finding back to its evidentiary source. The civil judgment writing hub treats this section as the factual foundation on which the entire reasoning rests.

It is worth keeping in mind why this section exists at all. An appellate court hearing a first appeal under section 96 of the Code is entitled to reappreciate the entire evidence and substitute its own findings of fact. It can do so meaningfully only if the trial judgment has faithfully catalogued what each witness deposed and what each document established. A judgment that records evidence properly is therefore not writing for itself alone; it is writing for the appellate bench that may never have seen the witnesses. This audience explains the discipline that follows: every PW, every DW and every exhibit must be recorded with enough particularity that a reader at one remove can reconstruct the trial from the four corners of the judgment.

For the structure of the judgment as a whole, see the chapter on the structure of a civil judgment; the evidence section is one of its load-bearing components.

The Statutory Frame: Order 18 CPC and the Evidence Act

Two statutes govern this stage. The procedure for taking evidence lives in Order 18 of the Code of Civil Procedure, 1908, which deals with the hearing of the suit and examination of witnesses. The substantive rules about how a witness is examined — the order of examination, what cross-examination may cover, the effect of leaving evidence unchallenged — live in Chapter X of the Indian Evidence Act, 1872 (sections 135 to 166). A judgment that records evidence is, in effect, certifying that this statutory machinery was followed.

Order 18 Rule 1 fixes who leads first: the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that, in point of law or on additional facts, the plaintiff is not entitled to any relief — in which case the defendant begins. Rule 2 requires the party with the right to begin to state his case and produce evidence on the issues he is bound to prove, after which the other side does the same. The substantive framework is set out more fully in the chapter on the statutory basis of civil judgment writing.

On the Evidence Act side, section 135 provides that the order in which witnesses are produced and examined is regulated by the law and practice relating to civil and criminal procedure, and in their absence, by the court's discretion. Sections 137 and 138 then prescribe the three-stage architecture of every witness's testimony, which every PW and DW in the judgment must have passed through.

Right to Begin and the Burden of Proof

The sequence in which PW and DW evidence appears in the judgment is not arbitrary; it flows from the burden of proof. Under Order 18 Rule 1, the party who would fail if no evidence were led on either side carries the burden and therefore begins. In the ordinary suit the plaintiff asserts the cause of action and so leads first, producing the PWs; the defendant follows with the DWs. The exception arises where the defendant admits the plaintiff's facts but raises a pure point of law or new facts in avoidance — there the defendant has the right to begin, and his witnesses may be recorded first.

This matters for judgment writing because the order of recording signals to the reader who bore the onus on each issue. The Supreme Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, stressed that civil trials are a search for truth and that parties must place their evidence honestly and fully; a judge recording evidence is documenting whether each side discharged the burden the law placed on it. A clear evidence section therefore implicitly tracks the burden, even before the issue-wise discussion begins.

The Three Stages: Chief, Cross and Re-examination

Every witness — PW or DW — passes through up to three stages defined by section 137 of the Evidence Act. Examination-in-chief is the examination of a witness by the party who calls him. Cross-examination is the examination of that witness by the adverse party. Re-examination is the examination, subsequent to cross-examination, by the party who called him. Section 138 fixes the order: a witness is first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the calling party so desires) re-examined.

The Act draws two important boundaries. Cross-examination need not be confined to the facts deposed to in chief — it may range over any relevant fact and may test the witness's veracity under sections 146 and 155. Re-examination, by contrast, is confined to explaining matters arising in cross-examination; if new matter is introduced in re-examination with the court's permission, the adverse party may further cross-examine on that new matter. A judge recording evidence should be able to see, on the deposition sheet, that these stages were observed — and a well-drafted judgment, when it summarises a witness, distinguishes what was said in chief from what emerged (or collapsed) in cross.

Two preliminary points underlie all three stages. First, competence: section 118 of the Evidence Act makes every person competent to testify unless the court considers that he is prevented from understanding the questions or giving rational answers by tender years, extreme old age, disease or the like. The judgment ordinarily need not labour the point, but where a child or an infirm witness deposes, the record should show that the court satisfied itself of competence. Second, leading questions: under sections 141 to 143, leading questions may not be asked in examination-in-chief or re-examination if objected to, save with the court's permission, whereas they are freely permitted in cross-examination. Because chief examination now arrives as an affidavit drafted by counsel, judges must be alert that the affidavit does not smuggle in, as the witness's own narrative, what is really the pleader's argument. A chief affidavit that merely parrots the plaint adds little, and a judgment is entitled to say so when it weighs such evidence.

Examination-in-Chief on Affidavit: Order 18 Rule 4

Since the CPC Amendment Act, 2002 (with effect from 1 July 2002), Order 18 Rule 4(1) mandates that in every case the examination-in-chief of a witness shall be on affidavit, copies of which are supplied to the opposite party by the party calling the witness. This replaced the older practice of recording chief examination orally and was designed to compress trial time. The judgment's evidence section therefore typically records that the chief examination of each witness was tendered by way of affidavit, with the affidavit itself forming part of the record.

The affidavit, however, is not self-proving. The Supreme Court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702, held that an affidavit of examination-in-chief does not become evidence merely by being filed; the deponent must enter the witness box, affirm the contents of the affidavit and tender himself for cross-examination, only after which the affidavit is read as evidence. A PW or DW who files an affidavit but never steps into the box has, in law, given no evidence at all — a point a careful judgment will note when a witness is dropped or remains uncross-examined.

Cross-Examination and Re-examination: Order 18 Rule 5

While chief examination is on affidavit, the adversarial testing is not. Order 18 Rule 5 provides that in appealable cases the evidence of each witness — meaning the cross-examination and re-examination of a witness whose chief is on affidavit — shall be taken down in the language of the court either by the judge or, under the personal direction and superintendence of the judge, in writing. The Rule preserves the open-court character of cross-examination, which is the principal safeguard of a fair civil trial.

The amended scheme was challenged and upheld in Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, the second Salem judgment. The Court held that the constitutional validity of the 1999 and 2002 amendments was sound and clarified the working of Rule 4: the right of cross-examination and re-examination in open court is not disturbed by requiring chief on affidavit, and a document does not become admissible merely because it is given an exhibit number in the affidavit — it must still be proved in accordance with law. The judgment's recording of cross-examination is thus the place where the reliability of each PW and DW is genuinely forged, and a judgment that glosses over it conceals the very testing that justifies its findings.

Recording the Plaintiff's Witnesses (PWs)

In drafting, the plaintiff's evidence is recorded first. The judgment identifies each witness by number and name, states the capacity in which he was examined (the plaintiff himself, an attesting witness, a handwriting expert, a neighbour, the scribe of a document), and summarises the material content of his deposition — what fact in issue he was led to prove. A model passage reads: "In support of his case the plaintiff examined himself as PW-1 and produced the sale deed dated 12 March 2015 as Exhibit P-1; PW-2 is the attesting witness to the deed; PW-3 is the village accountant who proved the revenue entries (Exhibits P-4 to P-6)."

The discipline is to record not merely that a witness was examined but what his evidence does for the case. Where the plaintiff himself does not enter the box on a matter within his special knowledge, the judgment should note it, because section 114(g) of the Evidence Act permits the court to presume that evidence withheld would, if produced, have been unfavourable. In Vidhyadhar v. Manikrao, (1999) 3 SCC 573, the Supreme Court held that where a party to a suit does not appear in the witness box and offers no explanation for staying away, a presumption arises that the case set up by him is not correct — a principle that bites equally against a plaintiff who hides behind agents.

The judgment should also resist treating the number of PWs as a measure of strength. Section 134 of the Evidence Act declares that no particular number of witnesses is required for the proof of any fact; the law weighs evidence, it does not count heads. A plaintiff who proves execution of a sale deed through a single credible attesting witness has discharged his burden as fully as one who marches six witnesses to the box. Conversely, a parade of interested PWs who merely echo one another adds no weight. The recording of the plaintiff's evidence should therefore capture the quality and the independence of each witness: whether he is a party, a relative, an interested person or a disinterested third party, because that characterisation, not the headcount, governs the later appreciation. Where the plaintiff relies on documents, the witness through whom each document is proved must be identified, for a document does not prove itself and its mode of proof — under sections 67 to 73 for signatures and handwriting, or section 68 for attested documents — is part of what the evidence section records.

Recording the Defendant's Witnesses (DWs)

The defendant's evidence is recorded in the same fashion, after the plaintiff's side closes. Each DW is numbered and named, the documents proved through him are marked as Exhibit D-series, and the substance of the deposition is summarised against the issue it answers. If the defendant has set up a positive case — a rival sale, a discharge, a custom, adverse possession — the DW evidence is where that case is built, and the judgment should record what each DW deposed in support of it.

Symmetry with the plaintiff's side matters. If the defendant pleaded a fact peculiarly within his knowledge but declined to step into the box, the same Vidhyadhar v. Manikrao presumption applies against him. Conversely, where the defendant's case is essentially a denial and the burden never shifted, a judgment may legitimately record that the defendant led no oral evidence and rested on the weakness of the plaintiff's proof — for the plaintiff must succeed on the strength of his own case, not the weakness of the defence, a proposition the court reaffirmed in Maria Margarida Sequeira Fernandes. The drafting goal is parity: the reader should be able to weigh PW against DW on each contested issue.

Exhibits and Documentary Evidence

Documents enter the record through witnesses and are marked as exhibits when proved. The evidence section of the judgment must therefore tie each exhibit to the witness who proved it and to the fact it establishes. A bare list of exhibits without this linkage is a common drafting failure: a sale deed marked Exhibit P-1 means little unless the judgment records that it was proved through the executant or an attesting witness and what it is said to establish.

Marking is not proof. As clarified in Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, an inadmissible document is not read into evidence merely because it has been assigned an exhibit number in an affidavit of examination-in-chief; admissibility and proof are separate questions to be decided by the court. Where a party objects to a document's admissibility during recording before a commissioner, Order 18 Rule 4(4) requires the objection to be recorded and decided by the court at the stage of arguments, not suppressed. A judgment that records exhibits should, where contested, note whether the document was admitted and proved, leaving the weight to the later discussion.

The Effect of Failure to Cross-Examine

One of the most consequential entries a judgment can carry is that a witness was not cross-examined on a material point. The settled rule, restated by the Supreme Court in Laxmibai (Dead) thr. LRs v. Bhagwantbuva (Dead) thr. LRs, (2013) 4 SCC 97, is that where a part of the testimony of a witness is left unchallenged in cross-examination, that part stands unrebutted and the court ought ordinarily to accept it; the party who wishes to dispute a statement must put the contrary version to the witness and give him the opportunity to explain. A judge recording evidence must therefore be alert to what was, and was not, put to each PW and DW.

This is the Indian application of the rule associated with Browne v. Dunn: a litigant cannot impeach in argument what he declined to challenge in the box. For the judgment writer, the practical consequence is that the evidence section should flag uncross-examined material — "the testimony of PW-2 regarding execution of Exhibit P-1 went unchallenged in cross-examination" — because that flag often carries the eventual finding. Failure to cross-examine is not a mere procedural footnote; it is frequently dispositive of an issue.

The rule is not absolute, and a judgment should apply it with care. The duty to cross-examine on a point presupposes that the point was material and that the witness was available; an omission to cross-examine on a trivial or formal matter draws no inference. Nor does failure to cross-examine convert inherently incredible or legally inadmissible testimony into proof — unchallenged evidence is accepted only where it is otherwise worthy of credit. The court in Laxmibai tied the principle to sections 138 and 146 of the Evidence Act, which give the adverse party the opportunity to test a witness; the rationale is fairness to the witness, who must be told what part of his account is disputed so that he may explain it. A judgment that invokes the rule should therefore record both the materiality of the unchallenged point and the absence of any challenge, rather than reciting the principle as a formula.

Demeanour, Court Questions and the Judge's Role

The judge is not a passive scribe at the evidence stage. Order 18 Rule 12 permits the court to record such remarks as it thinks material respecting the demeanour of any witness while under examination — a contemporaneous note that may later support a credibility finding, since an appellate court cannot see the witness. A judgment that ultimately disbelieves a witness on demeanour is on far firmer ground if a Rule 12 remark was recorded when the witness deposed.

Section 165 of the Evidence Act arms the judge with wide power to ask any question, in any form, at any time, of any witness about any relevant or irrelevant fact, in order to discover or obtain proper proof of relevant facts — subject to the limits that the judgment must be based on relevant and duly proved facts and that the privileges of witnesses are protected. The evidence section of a judgment may therefore record questions put by the court itself. Used judiciously, this power lets the judge fill genuine gaps in proof; used to take over a party's case, it invites reversal. Either way, what the court asked and answered belongs in the record.

Common Drafting Errors in the Evidence Section

Several recurring faults weaken the evidence section of a civil judgment. The first is the bare roll-call: "The plaintiff examined PW-1 to PW-4 and the defendant examined DW-1 to DW-3" — with no indication of what any of them said. Such a passage tells the appellate court nothing and forces it to re-read the depositions, defeating the purpose of a judgment. The cure is to summarise the material content of each witness against the issue he addresses.

The second error is collapsing the recording of evidence into the appreciation of evidence. The evidence section narrates what was led; the issue-wise discussion weighs it. A judge who, while recording PW-1, announces that PW-1 is unreliable has muddled the two functions and will struggle to keep the reasoning orderly. The third error is silence on exhibits — listing them without saying who proved them or what they prove. The fourth is ignoring the affidavit-and-cross-examination mechanics: failing to note that a witness who filed a chief affidavit never entered the box, when Ameer Trading Corporation makes that omission fatal to his evidence. A disciplined evidence section avoids all four by answering, for every witness and exhibit, three questions: who, proving what, tested how.

From Recorded Evidence to Findings

The evidence section is a bridge. Behind it lie the pleadings and the framed issues; ahead of it lies the issue-wise appreciation in which the court weighs PW against DW, exhibit against exhibit, and records a finding on each issue with reasons. A clean evidence section makes that later weighing tractable, because the judge has already laid out, witness by witness, the raw material to be assessed.

The craft, then, is to keep the recording faithful and complete but reserve judgment. The reader should finish the evidence section knowing exactly what each side proved through its witnesses and documents, what survived cross-examination and what was conceded by silence, and which presumptions — under section 114(g) for withheld evidence, or under Laxmibai for unchallenged testimony — are in play. Only then does the judgment turn to deciding the issues. To see how this section connects to the parts that precede it, read the chapters on the statement of the plaintiff's case and the statement of the defendant's case, and the introduction to the series for the overall scheme.

For the judiciary aspirant drafting a judgment under examination conditions, the evidence section rewards a simple habit: take each witness in turn, state who he is and for whom he was examined, summarise in a sentence or two what he proved and through which exhibits, and note pointedly anything that affects his evidence — that he was not cross-examined on a material point, that he never entered the box despite filing a chief affidavit, or that the court recorded a remark on his demeanour. Done consistently across all the PWs and DWs, this produces an evidence section that is complete, neutral and appeal-proof, and that hands the issue-wise discussion everything it needs. The recording of evidence is, in the end, an exercise in honest book-keeping: get it right, and the findings almost write themselves.