Hearing is the final procedural stage in a civil suit where the parties address the court with arguments and evidence on the issues framed. Affidavit is a written sworn statement submitted in lieu of or in support of oral evidence.
Legal Framework
| Provision | Subject |
|---|---|
| Order XVIII R.1 | Parties entitled to hearing |
| Order XVIII R.2 | Right to begin: plaintiff begins unless defendant admits facts and rests on law |
| Order XVIII R.4 | Evidence on affidavit: court may order evidence by affidavit |
| Order XVIII R.17 | Recall of witness: court may recall and re-examine any witness |
| Order XIX R.1 | Court may order facts proved by affidavit |
| Order XIX R.2 | Court may order attendance of deponent for cross-examination |
| Order XIX R.3 | Matters that may be sworn: facts deponent can depose from personal knowledge |
| S.3 Oaths Act 1969 | Oaths and affirmations may be administered by court |
1. Hearing Under Order XVIII
Hearing is the stage at which the court hears both parties on evidence and arguments. It follows the framing of issues, discovery, inspection, and production of documents. At the hearing, witnesses are examined, documents are tendered, and arguments are made.
Right to Begin (Order XVIII R.2): The plaintiff has the right to begin. However if the defendant admits the facts alleged by the plaintiff and claims relief only on a question of law, then the defendant has the right to begin.
Why plaintiff begins: The plaintiff bears the burden of proof on the cause of action. Having the right to begin means first presenting evidence and arguments.
Order XVIII R.4 (Evidence on Affidavit): The court may order that the evidence of any particular fact shall be proved by affidavit. This replaces oral examination-in-chief in appropriate cases. However cross-examination on the affidavit may still be ordered under Order XIX Rule 2.
Recall of Witness (Order XVIII R.17): The court may at any stage of a suit recall any witness who has been examined and may put such questions to the witness as the court thinks fit.
2. Affidavit Under Order XIX
An affidavit is a written sworn statement of facts made by a deponent before an authorised officer. It is used in civil proceedings as a substitute for or supplement to oral testimony.
Key Rules for Affidavits:
Order XIX Rule 3 restrictions:
- Personal knowledge only: The deponent can only depose facts within their personal knowledge
- No legal arguments: An affidavit must state facts not legal submissions or arguments
- Belief with source: If belief is stated the sources and grounds must be disclosed
- No scandalous matter: Affidavit must not contain irrelevant or scandalous matter
Cross-examination of deponent (Order XIX R.2): When a party uses an affidavit the court may order the deponent to attend for cross-examination. The opposing party can challenge the affidavit through cross-examination of the deponent.
Oath requirement (S.3 Oaths Act 1969): Every affidavit must be sworn before an officer authorised to administer oaths. The court may administer oaths or affirmations. An affidavit not properly sworn is defective.
3. Affidavit vs Oral Evidence
| Aspect | Affidavit | Oral Evidence |
|---|---|---|
| Form | Written sworn statement | Spoken testimony in open court |
| Order | Order XIX CPC | Order XVIII CPC |
| Scope | Only personal knowledge facts | Any admissible fact the witness knows |
| Cross-examination | Court orders deponent to attend if needed | Automatic right by opposing party |
| Use | Interlocutory applications; also main evidence by court order | Default mode for examination-in-chief |
| Legal arguments | Not permitted in affidavit | Not applicable: witnesses testify to facts |
4. Recall Check
- Who has the right to begin at hearing under Order XVIII Rule 2 and when does the defendant get the right to begin?
- What are the restrictions under Order XIX Rule 3 on what may be contained in an affidavit?
- Can a deponent be cross-examined on their affidavit? Under which provision?
Key Cases
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) Ayaaubkhan-Noorkhan-Pathan-v-State-Maharashtra-2013 Issue: Whether an affidavit can contain legal arguments or conclusions of law. Rule: An affidavit must contain only factual statements within the deponent's personal knowledge; legal arguments are impermissible. Held: Portions of an affidavit containing legal arguments are defective and must be ignored by the court.
Mangat Mal v. Punni Devi (1995) Mangat-Mal-v-Punni-Devi-1995 Issue: Whether the court's power to recall witnesses under Order XVIII R.17 is absolute or discretionary. Rule: The power under O.XVIII R.17 is discretionary; it should be exercised when the court requires clarification, not as a right of parties to re-examine. Held: Courts have wide power to recall witnesses at any stage but the power does not confer an absolute right on parties to demand re-examination.
6. Flashcards
Q: Who has the right to begin at hearing under Order XVIII Rule 2? A: The plaintiff. Exception: if defendant admits all facts and rests on law the defendant gets the right to begin.
Q: Under which provision can the court order evidence by affidavit? A: Order XVIII Rule 4 CPC.
Q: What are the three key restrictions on affidavit content under Order XIX Rule 3? A:
-
(1) Only personal knowledge facts
-
(2) No legal arguments
-
(3) If belief stated sources must be given.
Q: Can a deponent be cross-examined on their affidavit? A: Yes. Under Order XIX Rule 2 the court may order attendance of the deponent for cross-examination.
Q: What oath requirement applies to affidavits? A: Section 3 of the Oaths Act 1969: affidavit must be sworn before an authorised officer or court.
Q: What is the power of recall under Order XVIII Rule 17? A: Court may at any stage recall and re-examine any witness already examined.
Q: What distinguishes an affidavit from oral evidence in terms of content? A: Affidavit: only personal knowledge, no legal arguments. Oral evidence: any admissible fact within witness knowledge; legal arguments not applicable to witnesses.
7. Exam Scenario
Problem: In a civil suit the defendant files an affidavit as examination-in-chief evidence. The affidavit contains several paragraphs arguing that the plaintiff has no cause of action as a matter of law. The plaintiff objects. How should the court proceed?
Answer: The court should strike out the paragraphs containing legal arguments from the affidavit. Under Order XIX Rule 3 an affidavit must contain only facts within the personal knowledge of the deponent. Legal arguments and conclusions of law have no place in an affidavit (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra 2013). The factual portions of the affidavit may be retained. The plaintiff also has the right to apply under Order XIX Rule 2 for an order requiring the defendant to attend for cross-examination on the factual portions of the affidavit.