Recording of Evidence — Examination, Cross-Examination, Affidavit Evidence

Recording of evidence is the stage at which a civil suit stops being paper and becomes proof. Since the 2002 amendments to the Code of Civil Procedure, 1908, examination-in-chief in almost every suit is tendered on affidavit, while cross-examination and re-examination remain oral — often before a court commissioner — and the manner of recording still turns on whether the decree is appealable. For judiciary and CLAT-PG aspirants the topic sits at the crossroads of Order XVIII CPC, the law of witnesses under the Evidence Act (now the Bharatiya Sakshya Adhiniyam, 2023), and the local Civil Rules of Practice that supply the registers, oath forms and panels of commissioners. This chapter maps the whole machinery — who deposes, in what form, before whom, and what happens to evidence that is never tested by cross-examination.

Where recording of evidence sits in the trial

The hearing of a suit is governed by Order XVIII CPC, which opens with the right to begin: under Rule 1 the plaintiff ordinarily leads first, unless the defendant admits the facts alleged and contends only that the plaintiff is not entitled to relief, in which case the defendant begins. Recording of evidence follows the framing of issues (see our note on issue framing practice and form) and the production of documents and witnesses under Order XVI. Only the facts in issue and relevant facts identified at the issue stage may be proved; evidence on a fact for which no issue was framed is, as a rule, inadmissible. The party beginning states its case, produces its evidence, and the opposite party then leads its own — a sequence Order XVIII Rule 2 preserves.

Recording of evidence is thus the engine room of the trial. It converts pleadings (covered in our note on drafting of pleadings) into testimony that the court can weigh. The Civil Rules of Practice of each High Court supply the mechanics — the deposition register, the form of the oath, the marking of exhibits, the panel of commissioners and the manner of authenticating the record — so the bare CPC must always be read with the local rules. Return to the Civil Rules of Practice hub for the full sequence of stages.

Examination-in-chief, cross-examination and re-examination

The vocabulary of witness examination comes from the Evidence Act. Section 137 of the Indian Evidence Act, 1872 (now Section 142 of the Bharatiya Sakshya Adhiniyam, 2023) defines the three stages: the examination of a witness by the party who calls him is examination-in-chief; examination by the adverse party is cross-examination; and examination by the calling party after cross-examination is re-examination. Section 138 (now Section 143 BSA) fixes the order — chief, then cross, then re-examination — and the scope of each: examination-in-chief and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts spoken to in chief, while re-examination is directed to explaining matters that arose in cross-examination. If new matter is introduced in re-examination with the court's leave, the adverse party may further cross-examine on that matter.

Section 135 (now Section 140 BSA) leaves the order in which witnesses are produced and examined to be regulated by the law and practice relating to civil and criminal procedure, and in their absence to the court's discretion — which is precisely why Order XVIII CPC and the local Civil Rules of Practice govern the mechanics of recording. The distinction matters in practice: leading questions are permitted in cross-examination but generally barred in chief and re-examination, and the substance of what may be put to a witness is controlled by the relevance and admissibility rules the judge applies under Section 136 (now Section 141 BSA).

The three stages are not interchangeable. Examination-in-chief builds the calling party's case in the witness's own words; cross-examination, conducted by the adversary, tests that account, probes for contradiction, and may travel beyond the facts spoken to in chief to attack credit or establish the cross-examiner's own version; re-examination is a narrow corrective, confined to explaining ambiguities or apparent contradictions thrown up in cross, and it cannot be used to fill gaps the calling party forgot to cover in chief. Where a party wishes to introduce genuinely new matter in re-examination, the court's leave is required, and the adverse party then earns a fresh right of cross-examination on that matter under Section 138. Mastering this sequence is essential because the affidavit reform under Order XVIII has merely shifted the chief examination onto paper; the oral architecture of cross and re-examination — and the rights attached to each — is untouched.

Order XVIII Rule 4: examination-in-chief on affidavit

The single most important change to the recording of civil evidence came with the CPC (Amendment) Acts of 1999 and 2002. As substituted with effect from 1 July 2002, Order XVIII Rule 4(1) provides 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. The object was to save judicial time: the court no longer dictates the chief examination in open court but receives it as a sworn document, reserving precious courtroom time for cross-examination.

Rule 4(2) then provides that the cross-examination and re-examination of a witness whose chief examination has been furnished on affidavit shall be taken either by the court or by a commissioner appointed by it. The proviso requires the court to apply its mind — to the nature of the allegations, the nature of the evidence and the importance of the particular witness — in deciding whether the witness will be examined in court or before a commissioner. Rule 4(3) to (8) deal with the commissioner's powers, remuneration, the time-bound submission of the report, and the special position of witnesses who are about to leave the jurisdiction. Where documents are filed and relied upon, Rule 4 makes their proof and admissibility subject to the orders of the court — the affidavit cannot smuggle in unproved documents.

Ameer Trading: affidavit chief in appealable and non-appealable suits alike

The scope of the amended Rule 4 was settled in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702. The respondent had filed an affidavit as its examination-in-chief in an eviction suit before the Bombay Small Causes Court. The appellant objected, arguing that because the decree was appealable, Order XVIII Rule 5 — which requires the judge to take down the evidence in appealable cases — displaced the new affidavit procedure. The Supreme Court rejected the argument.

The Court held that the amended Rule 4 of Order XVIII makes no distinction between appealable and non-appealable cases so far as the mode of recording the examination-in-chief is concerned: in every case the chief examination is now to be tendered on affidavit, including the evidence of a party to the suit. The distinction between appealable and non-appealable cases survives only in Rules 5 and 13, and those rules govern the manner of recording the oral evidence — that is, the cross-examination and re-examination — not the chief. Ameer Trading is therefore the foundational authority that affidavit-in-chief is the universal rule, and it is routinely cited to repel objections that the old open-court chief examination must be revived in appealable matters.

Salem Advocate Bar Association: validity and the limits of the affidavit rule

The constitutional validity of the 1999 and 2002 amendments — including the affidavit-evidence rule — was tested in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344 (the second Salem case, AIR 2005 SC 3353). A three-judge Bench upheld the amendments and, on Order XVIII Rule 4, laid down guidance that every trial court still applies.

The Court clarified three points. First, while examination-in-chief is to be on affidavit, the trial court may in appropriate cases permit the chief examination to be recorded in court. Second, the proviso to Rule 4(2) requires the court to apply its mind to the facts, the nature of the allegations, the nature of the evidence and the importance of the witness before deciding whether to send the witness to a commissioner — the power must be exercised "with great circumspection." Third, and most importantly, the Court held that the right of cross-examination and re-examination in open court has not been disturbed by the insertion of Rule 4. The affidavit reform streamlined the chief examination; it did not dilute the adversary's right to test that evidence orally. Salem thus anchors both the validity and the constitutional limits of affidavit evidence.

Cross-examination as a valuable right

Cross-examination is treated by the courts as one of the most valuable rights of a litigant, because it is the chief engine for discovering truth and exposing falsehood in adversarial proceedings. The principle is illustrated in the criminal sphere by State of Kerala v. Rasheed, (2019) 13 SCC 297 (AIR 2019 SC 721), where the Supreme Court, while dealing with deferral of cross-examination under Section 231(2) CrPC, emphasised that the right to cross-examine is fundamental to a fair trial and that any discretion to defer it must be exercised on a case-to-case basis after weighing whether prejudice would be caused. The Court catalogued the relevant considerations — risk of a witness being influenced, the danger that later witnesses may tailor their evidence, possible loss of memory, and the risk of delay — guidance that civil courts borrow when regulating the sequence of cross-examination.

The same premium on cross-examination surfaces in civil practice. Where a party deliberately declines to cross-examine, the right is closed and the evidence-in-chief goes unchallenged, as the Supreme Court accepted in Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, where the defendants' advocate refused to cross-examine and the trial court rightly closed that right. The lesson for the practitioner is symmetrical: the opportunity to cross-examine must be given, but a party who forgoes it cannot later complain that the evidence stands untested.

Untested affidavits: evidentiary value and Order XIX

An affidavit that is never subjected to cross-examination carries little or no evidentiary weight. The classic authority is Smt. Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366 (AIR 1988 SC 1381), where the Supreme Court held that affidavits are not included in the definition of "evidence" in Section 3 of the Indian Evidence Act and can be used as evidence only when, for sufficient reason, the court passes an order under Order XIX Rules 1 or 2 CPC. The principle has carried over to affidavits of examination-in-chief: courts have held that an affidavit filed under Order XVIII Rule 4 does not become substantive evidence within the meaning of Section 3 until the deponent enters the box and is offered for cross-examination.

Order XIX CPC supplies the safety valve. Rule 1 lets the court order that any particular fact be proved by affidavit, but Rule 2 entitles either party to insist that the deponent be produced for cross-examination if production is reasonably possible and bona fide desired. The architecture is consistent: a sworn statement on paper is provisional; it ripens into evidence the court can act upon only when the maker is available to be tested. This is why the affidavit-in-chief and the oral cross-examination are two halves of a single act of proof, and why an affidavit whose maker absconds from cross is liable to be discarded.

Manner of recording: Rule 5 (appealable) and Rule 13 (non-appealable)

While the chief examination is on affidavit in every suit, the manner in which the oral evidence is set down still depends on whether an appeal lies from the decree. Order XVIII Rule 5 governs appealable cases: the evidence of each witness must be taken down in the language of the court, either in writing by or under the personal direction and superintendence of the judge, or from the judge's dictation directly onto a typewriter, or recorded mechanically in the presence of the judge. The object is a full, faithful record on which the appellate court can re-appreciate the evidence.

Order XVIII Rule 13 governs cases in which no appeal is allowed. There it is not necessary to take down the evidence at length; instead, as each witness is examined, the judge makes (or dictates, or causes to be mechanically recorded) a memorandum of the substance of what the witness deposes, which the judge signs or otherwise authenticates and which forms part of the record. Ameer Trading located precisely this appealable/non-appealable distinction in Rules 5 and 13 rather than in Rule 4 — confirming that the form of the chief examination (affidavit) and the rigour of recording the oral evidence (full record versus memorandum) are two separate questions answered by two separate rules.

Recording of evidence by a commissioner

Where the court directs under Order XVIII Rule 4(2) that cross-examination be taken by a commissioner, the commissioner is drawn from a panel maintained for the purpose and records the oral evidence under the powers conferred by Rule 4(3) to (8). The commissioner may record objections to questions and the answers given subject to those objections, leaving the court to rule on admissibility later; the report, together with the evidence and any objections, is submitted to the court within the time the court fixes. Rule 4(5) addresses the commissioner's remuneration, which the court fixes and which the parties bear as directed. Read together with Order XXVI (commissions generally), these provisions let the court delegate the time-consuming task of recording cross-examination while retaining control over admissibility and the final appreciation of evidence.

The commissioner mechanism dovetails with the Civil Rules of Practice, which prescribe the qualifications of commissioners, the form of their reports and the manner of returning exhibits. A recurring caution from Salem Advocate Bar Association bears repeating here: the decision to refer a witness to a commissioner is not automatic. The court must consider the importance of the witness and the nature of the evidence, because some witnesses — for instance, a key party or an expert whose demeanour matters — are better examined in the presence of the judge.

Documents, exhibits and proof at the recording stage

Affidavit evidence does not relax the rules of proof for documents. Documents on which a party relies must already be on the record — filed with the plaint or written statement, or produced under Order XIII / Order XVI — and they are proved through the witness in the box. Order XVIII Rule 4 expressly makes the proof and admissibility of documents filed along with the affidavit subject to the orders of the court, so an affidavit cannot exhibit a document that has not been proved according to law. The witness must speak to the document, lay its foundation, and only then is it marked as an exhibit and put to the deponent in cross-examination.

Where a document surfaces for the first time during cross-examination, the calling party cannot simply slip it into the affidavit-in-chief after the event. High Courts have held that a fresh or supplementary affidavit is required to bring such material on record and to permit re-examination on it, preserving the opponent's right to test the new document. This dovetails with the verification and annexure discipline at the pleading stage discussed in our note on filing of plaints — format, verification and annexures: documents must be identified early so that proof at trial is orderly rather than ambush.

Oath, demeanour and the judge's record

Every witness is examined on oath or affirmation administered under the Oaths Act, 1969, and the deposition records that the oath was administered — a formality the Civil Rules of Practice translate into prescribed oath registers and forms. Even though the chief examination is on affidavit, the deponent is sworn afresh before cross-examination so that the entire testimony is given under the sanction of the oath. The court also records remarks on the demeanour of a witness: Order XVIII Rule 12 empowers the judge, where the language of the deposition is recorded in the court's language, to record such remarks as he thinks material respecting the witness's demeanour while under examination — an observation the appellate court treats with respect because it depends on the trial judge's direct impression.

The deposition, once recorded and read over to the witness, is signed by the judge and forms part of the record. The integrity of this record is the reason for the strict procedures in Rules 5 and 13: the appellate court can only re-appreciate evidence it can read, and a defective or incomplete record may force a remand. The deposition register, exhibit list and the judge's authentication together make the recorded evidence the durable spine of the case.

Two practical safeguards in Order XVIII reinforce the integrity of this record. Rule 4(1) of an older vintage and the present scheme both contemplate that where any question is objected to and the court allows it subject to objection, the question, the answer and the objection are recorded so that the admissibility point survives for later decision and for appeal. And under Rule 5 the requirement that the evidence be taken down "in the presence and under the personal direction and superintendence of the Judge" means the judge cannot delegate the recording of oral evidence in an appealable case to a clerk acting unsupervised — the record must bear the stamp of judicial attention. These features explain why a recording that is hurried, inaudible or incomplete is a recurring ground of appellate criticism and occasionally of remand.

The duty to record truthful evidence

The recording of evidence is not a neutral clerical exercise; it is the stage at which the court is expected to seek the truth. In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (Dead) Through LRs, (2012) 5 SCC 370, the Supreme Court lamented that false claims and defences had become a major obstacle to the administration of justice and urged trial courts to use their powers — including the power to take evidence and to demand truthful pleadings and affidavits — to ensure that justice is done. The Court stressed that a party in possession, or asserting a right, must come to court with truthful pleadings and that the trial is the proper forum to test those assertions.

For the recording stage the message is practical: affidavits of examination-in-chief are sworn statements, and a deponent who files a false affidavit exposes himself to the consequences of perjury and to adverse inferences. The court's task while recording cross-examination is to expose evasion and contradiction, and the trial judge's findings on credibility — informed by demeanour under Order XVIII Rule 12 — carry weight precisely because they emerge from this tested record.

Common errors and exam pointers

Aspirants repeatedly trip on a handful of points. First, do not say the affidavit rule applies only to non-appealable suits — Ameer Trading holds it applies in every case; the appealable/non-appealable line lives in Rules 5 and 13 and governs the recording of oral evidence. Second, do not confuse Order XVIII Rule 4 (affidavit of examination-in-chief in a suit) with Order XIX (affidavits to prove particular facts, especially in interlocutory matters) — though both share the principle from Sudha Devi that an affidavit is not evidence unless the deponent is offered for cross-examination. Third, remember that cross-examination remains oral and is never on affidavit; Salem preserved the right to cross-examine in open court.

Fourth, keep the source statutes straight: examination, cross-examination and re-examination are defined by Section 137 of the Indian Evidence Act (now Section 142 BSA) and ordered by Section 138 (now Section 143 BSA), while the recording machinery is in Order XVIII CPC and the local Civil Rules of Practice. Finally, treat the commissioner option as discretionary and reasoned, not routine — the proviso to Rule 4(2) and Salem both demand a conscious application of mind. For context on how summons brings the witness to court in the first place, see our note on service of summons, and for the broader scheme begin with the introduction to the Civil Rules of Practice.