Hearing of Suit and Examination of Witnesses (Order XVIII)

Order XVIII of the Code of Civil Procedure, 1908 governs how the trial actually unfolds — who begins, in what order evidence is led, how the examination-in-chief is recorded, how cross-examination and re-examination are taken, and how the court manages the day-to-day mechanics of recording deposition. The 1999 amendment, brought into force on 1 July 2002, fundamentally restructured the recording of evidence: examination-in-chief is now on affidavit; cross-examination and re-examination are taken either by the court or by a Commissioner appointed by it. Order XVIII is the procedural heart of the trial.

This chapter sets out the right to begin under Rule 1, the structure of statements and arguments under Rule 2 with its post-2002 written-arguments regime, the rebuttal-evidence rule under Rule 3, the party-as-first-witness discipline under Rule 3A, the affidavit-led examination-in-chief under Rule 4, the recording mechanics under Rules 5 to 13, the recall-of-witness power under Rule 17, and the judicial inspection power under Rule 18. The leading Supreme Court authorities — Salem Advocate Bar Association, Ayaaubkhan Pathan, Vadiraj Naggappa Vernekar, K.K. Velusamy, Bagai Construction, and Ram Rati v. Mannge Ram — are integrated throughout.

Statutory anchor and scheme

Order XVIII follows the regime on adjournments under Order XVII. Once the trial proceeds on the appointed day, Rule 1 fixes the right to begin; Rule 2 prescribes the order of statements and evidence; Rule 3 supplies the rebuttal mechanism; Rule 3A imposes the party-as-first-witness rule; Rule 4 governs the recording of evidence — the central provision of the Order; Rules 5 to 13 supply the mechanics of recording deposition; Rules 15 to 19 deal with continuity, recall, inspection, and commissions. The architecture is comprehensive: from "who speaks first" to "what becomes of the deposition when the judge is transferred" — every aspect is covered.

The 1999 amendment was the largest single procedural overhaul of this Order in fifty years. It moved the chief examination off the witness stand and onto the affidavit — a change designed to compress the trial into a manageable number of sittings. The amendment was upheld by the Supreme Court in Salem Advocate Bar Association v. Union of India, (2003) 1 SCC 49, and explained at length in the follow-up at (2005) 6 SCC 344. The architecture rests on the broader managerial premise of the Code, examined in our chapter on the Code of Civil Procedure as a whole, and on the examination of parties under Order X which often surfaces the issues the trial later resolves.

Rule 1 — the right to begin

The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff — typically through admissions on the pleadings governed by Order XII — and contends that, either on a point of law or on additional facts pleaded by the defendant, the plaintiff is not entitled to any part of the relief sought; in which case the defendant has the right to begin. The rule mirrors Section 102 of the Indian Evidence Act, 1872: the burden of proof lies on that party who would fail if no evidence at all were given on either side. If A sues B for recovery of a piece of land of which B is in possession, the burden lies on A — for if no evidence were given on either side, B would be entitled to retain possession.

Where a defendant admits only some of the facts alleged by the plaintiff, that does not give him the right to begin. The right is determined by the rules of evidence — and as a general rule, the party on whom the burden rests should begin. Sections 101 to 114 of the Indian Evidence Act govern the burden of proof; Order XVIII Rule 1 simply translates that burden into a procedural right at the trial stage. The trial itself opens after the procedure on settlement of issues under Order XIV has fixed the questions for adjudication; Rule 1 then assigns the right to begin in respect of those issues.

Rule 2 — statements, evidence, oral arguments, written arguments

Rule 2 supplies the order in which the trial unfolds. On the day fixed for hearing, the party with the right to begin shall state his case and produce his evidence in support of the issues he is bound to prove. The other party shall then state his case and produce his evidence, and may then address the court generally on the whole case. The party beginning may then reply generally on the whole case. Sub-rules (3A) to (3D), inserted in 1999, supplement the oral architecture with written arguments: any party may, before concluding oral arguments, submit concise written arguments under distinct headings, which form part of the record.

Sub-rule (3B) requires that a copy of the written arguments be furnished simultaneously to the opposite party. Sub-rule (3C) bars adjournment for the purpose of filing written arguments unless the court records reasons in writing. Sub-rule (3D) empowers the court to fix time-limits for oral arguments. The Commercial Courts Act, 2015 substitutes sub-rules (3A) to (3F) for commercial disputes of specified value: written arguments must be submitted four weeks prior to oral arguments, must indicate the provisions of law and citations of judgments relied upon, and must include copies of the judgments cited.

The Supreme Court in Ramachandra Narayan Nayak v. Karnataka Neeravari Nigam Ltd, (2013) 15 SCC 140, held that reliance by a court on evidence not pleaded in the written statement is wholly inadmissible — a corollary of the discipline established by Rule 2 read with the regime of written statement and counterclaim. The party's case stands or falls on the pleadings; evidence beyond those pleadings is irrelevant.

Rule 3 — rebuttal evidence and the option to reserve

Rule 3 supplies the mechanism for splitting the evidence into a primary case and rebuttal. Where there are several issues, the burden of proving 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. In the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence; the other party may then reply specially on the evidence so produced; and the party beginning will then be entitled to reply generally on the whole case.

The Madras High Court in T.R.S. Mani v. T.R. Suryanarayanan, AIR 1996 Mad 152, supplied the timing rule: the option must be exercised when the opposite party begins his evidence — not at any earlier moment, and not after the opposite party's evidence has closed. The Saurashtra High Court in Motibhai v. Umedchand, AIR 1956 Sau 52, took the same view. The right to rebuttal applies only where the burden is on the other party; where the onus is on the party beginning, no separate rebuttal is permitted. The Punjab and Haryana High Court in Jagdev Singh v. Darshan Singh, AIR 2007 P&H 118, applied the rule strictly: where the onus to prove a memo of partition lay on the plaintiff, the opportunity for the plaintiff to examine a handwriting expert in rebuttal was improper.

The Himachal Pradesh High Court in Neelam Rai v. Surjit Kumar, AIR 2011 HP 39, made the same point in reverse: the trial court's order allowing rebuttal evidence by the plaintiff on issues for which he himself bore the onus was patently erroneous. The Delhi High Court in Prem Sagar Gupta v. Kamlesh Kumari, AIR 2004 Del 136, qualified the rule on bona fides: where rebuttal application is filed two months after the closure of the defendant's evidence and the case is fixed for arguments, denial may amount to defeating the interest of justice — but timeliness is the key factor.

Rule 3A — party as the first witness

Rule 3A, inserted in 1976, requires that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf — unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. The rule embodies the discipline that the party's testimony should set the stage for that of his witnesses, not respond to it after the fact.

The rule is not inviolable. The Patna High Court in Shri Ram Maharaj v. Raj Kishore Bhagat, (1978) 26 BLJR 600, held that permission must be obtained at the commencement of the party's evidence; the Punjab High Court in Niranjan Lal v. Punjab State Electricity Board, Patiala, (1978) 80 PLR 412, held that permission may be granted even at a later stage if a proper case is made out, since it is in the public interest that litigants should be allowed to have a full say. The Bombay High Court in Nagarao v. Keshav, 1979 Mah LJ 809, took the broader view: Rule 3A does not lay down specifically that a party must obtain permission before examining witnesses. The Gauhati High Court in Subhas Chandra Agarwalla v. Golabi Devi Agarwala, AIR 1992 Gau 20, held that even where reasons are not recorded, the permission is valid provided there is a judicial application of mind. The Madras High Court in Arya Vysya Samajam v. R. Murli, AIR 2009 Mad 108, held that examination of the plaintiff after the case is posted for arguments would prima facie cause prejudice to the defendant.

Rule 4 — examination-in-chief on affidavit

Rule 4 is the most consequential provision of the Order. Sub-rule (1), as amended in 1999, requires that the examination-in-chief of every witness shall be on affidavit — copies to be supplied to the opposite party by the party calling him for evidence. The proviso states that where documents are filed and relied upon, the proof and admissibility of such documents filed along with the affidavit shall be subject to the orders of the court. Sub-rule (2) requires cross-examination and re-examination of the witness in attendance, whose chief examination by affidavit has been furnished to the court, to be taken either by the court or by a Commissioner appointed by it. Sub-rules (3) to (8) supply the mechanics of recording, the panel of Commissioners, remuneration, and the inter-relation with the parent regime on commissions under Order XXVI.

The Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, supplied the doctrinal qualification. An affidavit is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872, and can be used as evidence only if the court passes an order under the Order XIX regime for sufficient reasons. However, where the deponent is available for cross-examination and the opportunity is given to the other side to cross-examine, the affidavit may be relied upon. The amended Rule 4 affirms this position: the affidavit becomes "evidence" only on the deponent entering the witness box and being subjected to cross-examination.

The Bombay High Court in Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81, made the procedural point sharper: witnesses whose affidavits are filed in court as examination-in-chief are required to enter the witness box to testify that the contents of the affidavit are according to their statements and under their signature; if the prescribed procedure is not followed, the affidavits cannot form part of evidence. The Karnataka High Court in S. Prasanna Kumar v. R. Saraswathi, AIR 2009 Kar 109, deprecated the practice of advocates reproducing the allegations in the plaint verbatim in the affidavit filed in lieu of chief examination — it shows that advocates do not study the case of the parties properly.

Rule 4 — recording by Commissioner

Sub-rule (2) of Rule 4 introduced the Commissioner-led model for cross-examination. The Bombay High Court Full Bench in Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom 178, held that the word "shall" in Rule 4(2) must be construed as "may" — otherwise it would cause absurd results. The court has discretion to record cross-examination and re-examination either by itself or before a Commissioner; no strait-jacket formula can be provided. The Supreme Court in Salem Advocate Bar Association, (2005) 6 SCC 344, held that the court can direct that evidence may be recorded by the Commissioner and partly by the court — the view that once the court decides to refer to a Commissioner, evidence of all witnesses must so be recorded, is not correct.

The Court further held in the same decision that recording of evidence can be with the help of electronic media, audio or audiovisual; whenever evidence is recorded by the Commissioner, simultaneous audio recording of the statement of witnesses is advisable. The Delhi High Court in International Planned Parenthood Federation v. Madhu Bala Nath, AIR 2016 Del 71, observed that courts must be liberal and pragmatic in allowing witnesses to depose through video conferencing.

The Rajasthan High Court in Ramesh Chandra v. Additional District Judge, AIR 2010 Raj 59, made an important procedural distinction. Under the proviso to Rule 4(1), objections on the admissibility of documents must be decided by the court forthwith — postponing the decision is contrary to the object of the amendment. Under Rule 4(4), where evidence is recorded by the Commissioner, objections raised during the recording are to be decided by the court at the stage of arguments. The differential treatment is deliberate: the court before whom evidence is led has the immediate power to rule; the Commissioner does not.

Rules 5 to 8 — recording of evidence in appealable cases

Rule 5 governs the recording of evidence in cases in which an appeal is allowed. The evidence of each witness shall be taken down in the language of the court — either in writing by, or in the presence and under the personal direction and superintendence of, the judge; or from the dictation of the judge directly on a typewriter; or, if the judge for reasons recorded so directs, recorded mechanically in the language of the court in the presence of the judge. The rule does not apply to chartered High Courts in the exercise of their ordinary or extraordinary original civil jurisdiction by virtue of Order XLIX Rule 3(4).

Rule 6 supplies the interpretation rule: where evidence is taken down in a 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 shall be interpreted to him in the language in which it is given. Rule 7 carries forward Section 138 of the Code: evidence taken down under Section 138 shall be in the form prescribed by Rule 5 and shall be read over, signed, and where required interpreted and corrected. Rule 8 supplies the memorandum rule: where the evidence is not taken down in writing by the judge himself, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes; the memorandum shall be written and signed by the judge and shall form part of the record.

Rules 9 to 13 — language, particular questions, demeanour, unappealable cases

Rule 9 permits evidence to be taken down in English where English is not the language of the court, provided no party objects. Rule 10 permits the court, of its own motion or on application, to take down any particular question and answer, or any objection to any question, where there is special reason for doing so. Rule 11 governs questions allowed by the court despite objection: the judge shall take down the question, the answer, the objection, the name of the person making the objection, and the court's decision thereon. The Punjab High Court in Ram Krishna v. Firoze Chand, AIR 1960 P&H 430, held that a Commissioner appointed to take evidence has no power to disallow questions which he considers irrelevant; the Commissioner records the objection, and the court decides at the stage of arguments.

Rule 12 empowers the court to record such remarks as it thinks material respecting the demeanour of any witness while under examination. The Madhya Pradesh High Court in Yogendra Kumar v. Pawan Kumar Jain, AIR 2010 MP 152, restricted the rule to remarks made while the examination is being conducted — not at a subsequent stage. An application four months after the witness's evidence to record demeanour notes was held impermissible; allowing such a prayer would require an inquiry into the witness's demeanour after the fact, which is not contemplated.

Rule 13 supplies the parallel for cases in which an appeal is not allowed: it shall not be necessary to take down or dictate or record the evidence of witnesses at length; the judge, as the examination proceeds, shall make in writing or dictate or cause to be mechanically recorded a memorandum of the substance of what the witness deposes, signed by the judge or otherwise authenticated, and forming part of the record.

Rule 15 — successor judge and continuity

Rule 15 deals with continuity. Where a judge is prevented by death, transfer or other cause from concluding the trial, 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, and may proceed with the suit from the stage at which his predecessor left it. Sub-rule (2) extends the rule to evidence taken in a suit transferred under Section 24.

The Bombay High Court in Keith Allams v. Irvin D'Silva, AIR 2000 Bom 182, held that the rule applies only when there is a change of judicial officer. The evidence heard and recorded by one judge has mandatorily to be treated as evidence in the suit before another judge — neither consent of the parties nor a specific order of release is required. The evidence, as a court record, becomes a permanent and immutable record; unless there is law or binding precedent to the contrary, such evidence cannot be deleted, obliterated or disregarded. Jeremy Bentham's observation in his Rationale of Judicial Evidence — that delay and expense in litigation are worse evils than judgment by a person who has not himself taken the oral evidence — captures the underlying premise; a party cannot demand a de novo trial as of right.

Rule 16 — examination of witness immediately

Rule 16 permits the court, on application of any party or of the witness, to take the evidence of a witness immediately — even before the trial stage — where the witness is about to leave the jurisdiction of the court or other sufficient cause is shown. Sub-rule (2) requires notice to the parties; sub-rule (3) requires the deposition to be read over to the witness and signed by him, with the judge correcting and signing as necessary. The Madras High Court in Ramasamy Gounder v. Muthayammal, AIR 1999 Mad 363, held that Rule 16 has nothing to do with the right to begin and to lead evidence under Rules 1 and 3; it is an entirely separate procedural option for the early preservation of testimony.

Rule 17 — recall of witness

Rule 17 empowers the court at any stage of a suit to recall any witness who has been examined and put such questions to him as the court thinks fit, subject to the law of evidence. The basic purpose, as the Supreme Court explained in Ram Rati v. Mannge Ram, (2016) 11 SCC 296, is to enable the court to clarify any position or doubt — either suo motu or on the request of a party. The power can be exercised at any stage. But it cannot be invoked to fill up an omission in evidence already led, or to fill a lacuna; recalling a witness for "further elaboration on the left out points" is impermissible.

The Supreme Court in Vadiraj Naggappa Vernekar v. Sharadchand Prabhakar Gogate, AIR 2009 SC 1604, held that a witness examined by way of affidavit evidence cannot be recalled for further evidence regarding facts not mentioned in the affidavit, where the evidence sought to be introduced was available at the time the affidavit was prepared and only after cross-examination certain lapses were noticed. The Court in K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, held that in the interests of justice and to prevent abuse of process, the trial court may consider whether to reopen evidence and in what manner, exercising its power under Section 151. The Supreme Court in Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1, settled the limit: at a belated stage, particularly after the matter is reserved for pronouncement of judgment, the plaintiff cannot be permitted to file applications under Rule 17 to fill lacunae in pleadings or evidence.

The Supreme Court in Food World Supermarkets Ltd v. H. Sujan Singh, (2009) 14 SCC 359, held that where the plaintiff was examined in the absence of the defendant and the defendant prayed for recall of the plaintiff for cross-examination on the ground that refusal would cause serious prejudice — and offered reasonable explanation for his absence — the order refusing recall was improper. Rule 17 is therefore a tightly bounded power: clarification, not lacuna-filling; suo motu or party-led, but always for the court's purposes; sparingly used in peculiar circumstances.

Rule 18 — judicial inspection

Rule 18 empowers the court at any stage of a suit to inspect any property or thing concerning which any question may arise. Where the court inspects, it shall as soon as practicable make a memorandum of any relevant facts observed at such inspection; the memorandum shall form part of the record of the suit. The 1976 amendment made the memorandum-making obligatory, settling the earlier conflict between the Madras view in Kali Ammal v. Pongi Ammal (1958) — memorandum essential, failure vitiates the judgment — and the Andhra view in Venkataramanayya v. Subbaraman, AIR 1959 AP — desirable but failure does not vitiate.

The doctrinal limit is firm. The Supreme Court in Ugam Singh v. Kesrimal, (1970) 3 SCC 831, held that the judgment of the court should not be based solely on the observations made by the court on local inspection; inspection can only be for the purposes of understanding the evidence given by witnesses. Observations by a judge in the course of his local inspection cannot be substituted for the evidence of witnesses examined on the subject — in the case of a judge's observations, the parties never get a chance either of cross-examining him or of setting right his views if found erroneous, as the Bombay High Court in Amratlal v. Land Acquisition Officer, Ahmedabad, AIR 1945 Bom 302, observed. The Karnataka High Court in B.T. Krishnappa v. Principal Munsif Kolar, AIR 1980 Kant 106, upheld the constitutional validity of the rule against an Article 14 challenge — the court will not act arbitrarily in exercising the power.

Rule 19 — statements recorded on commission

Rule 19, inserted in 1999, supplies a residual power that intersects with the broader regime on discovery and inspection of documents when third-party records are involved: notwithstanding anything in the foregoing rules, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under Rule 4-A of the commissions chapter. The provision is the procedural complement to Rule 4(2), which permits cross-examination by Commissioner; Rule 19 extends the option to chief examination as well, in cases where a party or witness cannot conveniently be examined in open court. The two provisions together — Rule 4(2) and Rule 19 — supply the modern flexibility that allows trial courts to compress the recording of evidence into a manageable schedule.

Distinguishing Order XVIII from cognate provisions

Three procedural distinctions matter. First, between Rule 4 (chief on affidavit) and the affidavit regime under Order XIX: Order XIX governs affidavits as evidence — when and how a court may order proof on affidavit; Rule 4 mandates chief examination on affidavit but treats it as evidence only after cross-examination. The two provisions are complementary, not alternative — examined more fully in our chapter on the law of affidavits. Second, between Rule 17 (recall of witness) and Rule 18 (judicial inspection): Rule 17 reopens witness testimony for clarification; Rule 18 supplements the evidence with the court's own observation but cannot substitute for it. Third, between Rule 4(2) and (3) (cross-examination by Commissioner) and the substantive law on commissions under Order XXVI: Rule 4(2) is a special application of the commission machinery for the recording of evidence at trial; Order XXVI is the parent regime supplying the broader power.

A fourth distinction is between Order XVIII Rule 1 (right to begin) and the burden-of-proof framework under the Indian Evidence Act, and a fifth between this Order's recording mechanics and the production-of-documents regime in Order XIII — the latter governs the bringing of documents on record before they can be put to the witness during chief examination. The right to begin is a procedural translation of the substantive burden under Sections 101 to 114 of the Evidence Act; where the substantive burden shifts during the trial, the procedural right to lead evidence in rebuttal under Rule 3 follows.

MCQ angle — the recurring distinctions

Three propositions are tested with regularity. First, Rule 4(1) requires examination-in-chief on affidavit, but the affidavit becomes "evidence" only on the deponent entering the witness box and being available for cross-examination — the position established in Ayaaubkhan Pathan and reiterated in subsequent decisions. Second, the recall power under Rule 17 is for clarification, not lacuna-filling — the Vadiraj, Velusamy, Bagai and Ram Rati trilogy supplies the doctrinal frame. Third, the Bombay Full Bench reading of Rule 4(2) in Harish Vithal Kulkarni — "shall" must be read as "may" — gives the court flexibility to record cross-examination either itself or by Commissioner, depending on the facts.

Two further distinctions are worth carrying forward. The objection-on-admissibility regime is bifurcated: under Rule 4(1) proviso, the court before which evidence is led decides forthwith; under Rule 4(4), where the Commissioner records, objections are decided by the court at the stage of arguments. And the Rule 18 inspection rule is post-1976 obligatory in the matter of memorandum, but the inspection cannot itself form the basis of the judgment — Ugam Singh sets the limit.

Practical takeaways for the trial-court practitioner

Three practical points. First, prepare the chief-examination affidavit with care: it is the substantive evidence of the witness, not a recital of the plaint. Reproducing pleadings verbatim — the Prasanna Kumar v. Saraswathi caution — invites adverse comment and weakens the case. Each affidavit should be calibrated to the specific issues the witness is being called to prove. Second, when seeking recall under Rule 17, frame the application as one for clarification of an ambiguity, not as one for reopening of evidence; the Vadiraj-Bagai framework is severe on lacuna-filling applications. Third, when objecting to admissibility, push for the objection to be decided forthwith under Rule 4(1) where the court is recording evidence; under Rule 4(4), the objection survives to the arguments stage, but a decision is in any event preserved on the record.

Order XVIII is the procedural skeleton on which the trial is hung. Once the evidence on each issue closes, the court turns to the framing of the judgment and decree under Order XX; until then, the disciplines of Rule 4 and Rule 17 control everything that goes onto the record. The next chapter, on affidavits under Order XIX, addresses the form in which much of that evidence is now received — and the doctrinal preconditions for treating an affidavit as evidence within the meaning of Section 3 of the Evidence Act.

Frequently asked questions

Is examination-in-chief on affidavit mandatory under Order XVIII Rule 4?

Yes. Sub-rule (1) of Rule 4, as substituted by the 1999 Amendment effective from 1 July 2002, requires that in every case the examination-in-chief of a witness shall be on affidavit, with copies supplied to the opposite party. The affidavit, however, becomes 'evidence' within the meaning of Section 3 of the Evidence Act only on the deponent entering the witness box and being available for cross-examination — the doctrinal qualification supplied by the Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, and Bank of India v. Allibhoy Mohammed, AIR 2008 Bom 81.

Can a witness be recalled under Order XVIII Rule 17 to fill gaps in evidence?

No. The Supreme Court in Ram Rati v. Mannge Ram, (2016) 11 SCC 296, and Vadiraj Naggappa Vernekar v. Sharadchand Prabhakar Gogate, AIR 2009 SC 1604, held that Rule 17 is for clarification of ambiguities, not for filling lacunae in evidence already led. K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, and Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1, established the limit: at a belated stage, particularly after the matter is reserved for judgment, recall applications cannot be entertained merely to introduce evidence that was available earlier but not led.

Must cross-examination be recorded by the court itself, or can it be done by a Commissioner?

Either. The Bombay High Court Full Bench in Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom 178, held that the word 'shall' in Rule 4(2) must be construed as 'may' — the court has discretion to record cross-examination and re-examination either by itself or before a Commissioner appointed by it. The Supreme Court in Salem Advocate Bar Association v. UOI, (2005) 6 SCC 344, confirmed that the court can direct evidence to be recorded partly by the Commissioner and partly by the court itself; the view that once the Commissioner is appointed, all evidence must be so recorded, is incorrect.

When must the option to reserve rebuttal evidence under Rule 3 be exercised?

When the opposite party begins his evidence, not at any earlier moment. The Madras High Court in T.R.S. Mani v. T.R. Suryanarayanan, AIR 1996 Mad 152, and the Saurashtra High Court in Motibhai v. Umedchand, AIR 1956 Sau 52, supplied this timing rule. The right to rebuttal applies only to issues for which the burden of proof lies on the other party; where the onus is on the party beginning, no separate rebuttal is permitted, as held in Jagdev Singh v. Darshan Singh, AIR 2007 P&H 118, and Neelam Rai v. Surjit Kumar, AIR 2011 HP 39.

Can a party appear as a witness after his other witnesses have been examined?

Only with the court's permission, and on reasons recorded. Rule 3A, inserted in 1976, requires the party to appear before any other witness on his behalf, unless the court for reasons to be recorded permits him to appear later. The Patna High Court in Shri Ram Maharaj v. Raj Kishore Bhagat, (1978) 26 BLJR 600, requires permission at the commencement of evidence; the Bombay High Court in Nagarao v. Keshav, 1979 Mah LJ 809, takes the broader view that Rule 3A does not specifically bar later examination. The Madras High Court in Arya Vysya Samajam v. R. Murli, AIR 2009 Mad 108, held that examination after the case is posted for arguments would prima facie cause prejudice to the defendant.

Can the court base its judgment on its own local inspection under Order XVIII Rule 18?

No. The Supreme Court in Ugam Singh v. Kesrimal, (1970) 3 SCC 831, held that the judgment cannot be based solely on observations made on local inspection. The inspection is for the limited purpose of understanding the evidence given by witnesses — it cannot substitute for that evidence. The 1976 Amendment made the recording of a memorandum obligatory, settling the earlier conflict; but the substantive limit on use remains. As the Bombay High Court observed in Amratlal v. Land Acquisition Officer, Ahmedabad, AIR 1945 Bom 302, the parties never get a chance to cross-examine the judge or set right his views — so the inspection is supplementary, not foundational.