Analysis of Order 18 Rule 2(4) CPC

The Evolving Scope of Judicial Discretion: An Analysis of Order 18 Rule 2(4) of the Code of Civil Procedure, 1908 and the Invocation of Inherent Powers

Introduction

Order 18 of the Code of Civil Procedure, 1908 (CPC) governs the hearing of the suit and examination of witnesses. Rule 2 of this Order outlines the sequence in which parties are to state their case and produce evidence. Historically, sub-rule (4) of Order 18 Rule 2, introduced by an amendment, vested the court with explicit discretionary power to permit any party to examine any witness at any stage of the suit for reasons to be recorded. This provision played a significant role in ensuring that procedural rigidity did not overshadow the pursuit of substantive justice. However, this sub-rule was subsequently deleted by a later amendment, raising pertinent questions about the continued existence and exercise of such judicial discretion. This article seeks to analyze the legislative journey of Order 18 Rule 2(4) CPC, its judicial interpretation while it was in force, and the prevailing legal position regarding the court's power to allow examination of witnesses at a later stage, particularly through the invocation of inherent powers under Section 151 CPC. The analysis will draw upon key judicial pronouncements and the broader objectives of procedural reforms in India.

Legislative History and Context of Order 18 Rule 2(4) CPC

The Code of Civil Procedure, 1908, has undergone several amendments aimed at expediting the trial process and reducing delays in the administration of justice. Order 18 Rule 2, in its original formulation, primarily dealt with the right to begin and the order of producing evidence by the plaintiff and defendant.

Sub-rule (4) was inserted into Order 18 Rule 2 by the Code of Civil Procedure (Amendment) Act 104 of 1976. This newly inserted sub-rule read:

"(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage."

The introduction of this sub-rule was a significant legislative recognition of the need for judicial flexibility. It empowered courts to deviate from the standard sequence of evidence if the interests of justice so demanded, provided that reasons for such a decision were duly recorded. This provision was intended to ensure that crucial evidence was not shut out merely due to procedural timelines, thereby aiding in a more comprehensive and just adjudication.

However, as part of a larger set of amendments aimed at streamlining civil procedure and curtailing delays, Order 18 Rule 2(4) was deleted by the Code of Civil Procedure (Amendment) Act 46 of 1999, which came into effect on July 1, 2002. This deletion occurred alongside other significant changes, such as amendments to Order 18 Rule 4 concerning the recording of evidence by affidavit, and the deletion of Order 18 Rule 17-A which dealt with the production of evidence that was not previously known or could not be produced despite due diligence. The overarching objective of these amendments, as affirmed in cases like Salem Advocate Bar Association, T.N v. Union Of India . (Salem I)[1] and Salem Advocate Bar Association, T.N v. Union Of India . (Salem II)[2], was to expedite civil litigation. The deletion of Rule 2(4) thus prompted discussions on whether courts retained any residual power to permit evidence at a late stage.

Judicial Interpretation of Order 18 Rule 2(4) CPC (and its Principles Post-Deletion)

During its existence, Order 18 Rule 2(4) was interpreted by courts as a repository of discretionary power to be exercised judiciously. The phrase "at any stage" was construed broadly, and the requirement "for reasons to be recorded" ensured transparency and accountability in the exercise of this discretion.

Discretion of the Court and "At Any Stage"

The Karnataka High Court in Rabiya Bi Kassim M. v. The Country Wide Consumer Financial Service Ltd.[3], while considering a case where an application for reopening and leading further evidence was filed when the case was posted for judgment, explicitly referred to the then-existing Order 18 Rule 2(4). The Court noted that this provision allowed the court to permit examination of any witness at any stage, for reasons to be recorded. This indicates the wide amplitude of the power vested in the courts under this sub-rule.

The Punjab & Haryana High Court in cases like Chandgi… v. Mehar Singh…[4] and Banwari v. Nagina[5], while dealing with applications for additional evidence, often considered the principles underlying Order 18 Rule 2(4) and the erstwhile Order 18 Rule 17A. These decisions emphasized that the judicial conscience of the court needed to be satisfied and that procedural rules are meant to advance the cause of justice. Permission for additional evidence was granted even where there might have been some oversight, provided it was crucial for a just decision and did not unduly prejudice the opposing party.

The Impact of Deletion and Reliance on Inherent Powers (Section 151 CPC)

The deletion of Order 18 Rule 2(4) CPC by the 1999 Amendment Act did not, as judicial pronouncements have clarified, completely denude the courts of their power to permit evidence at a later stage if the ends of justice so required. Courts began to increasingly rely on their inherent powers under Section 151 CPC.

The Andhra Pradesh High Court in Janachaitanya Housing Ltd., Ameerpet v. Divya Financiers[6] directly addressed the consequence of the deletion of Order 18 Rule 2(4). The Court held that the law prevalent prior to the 1976 amendment (which inserted sub-rule 4) would govern. More importantly, it drew an analogy from the Supreme Court's observations in Salem Advocate Bar Association (II)[2] concerning the deletion of Order 18 Rule 17-A. In Salem II, the Supreme Court had observed:

"even before insertion of Order 18 Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just".

Applying this principle, the Andhra Pradesh High Court in Janachaitanya Housing Ltd. concluded that "as the discretion vests with the court for granting such permission prior to insertion of Order 18 Rule 2(4), omission of above provision by 1999 amendment does not take away the court's inherent power to call for any witness at any stage either suo motu or on the prayer of a party invoking the inherent powers of the court."[6]

The Supreme Court's decision in K.K Velusamy v. N. Palanisamy .[7], though primarily dealing with the scope of Order 18 Rule 17 and Section 151 CPC in the context of the deletion of Order 18 Rule 17-A, provides significant guidance. The Court affirmed that Section 151 CPC can be invoked to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, especially where no specific provision governs the situation or where a specific enabling provision has been removed. The Court laid down several principles for the exercise of this inherent power, including:

  • The power is not to be exercised when there is an express provision in the Code.
  • It can be invoked where the Code is silent, to achieve the objects of the Code.
  • It should not be used to fill up omissions of a party or to recall witnesses for further examination or cross-examination to fill lacunae, after the party has closed its evidence.
  • However, if a party satisfies the court that evidence is crucial for a just decision, was not available earlier despite due diligence, and its non-production would lead to a miscarriage of justice, Section 151 CPC could be invoked.

These principles from K.K. Velusamy are highly pertinent to situations formerly covered by Order 18 Rule 2(4). The court must balance the need for expedition and procedural finality, as emphasized in cases like Ramrameshwari Devi And Others v. Nirmala Devi And Others[8] (which advocated for imposing realistic costs to curb frivolous litigation and delays), with the paramount objective of rendering substantive justice.

The Current Position: Navigating Justice through Inherent Powers

In the absence of the explicit provision of Order 18 Rule 2(4) CPC, the power of the civil court to permit a party to examine a witness at a stage not conventionally designated for that party's evidence, or after the formal closure of evidence, is now primarily traceable to its inherent powers under Section 151 CPC. The exercise of this power is discretionary and must be guided by the overarching principle of advancing the cause of justice.

The court, when faced with such an application, would typically consider:

  1. The stage at which the application is made and the reasons for the delay.
  2. The nature and relevance of the evidence sought to be adduced.
  3. Whether the party seeking to produce evidence has acted with due diligence.
  4. The potential prejudice to the opposing party and whether it can be compensated by costs.
  5. Whether the non-production of such evidence would result in a manifest injustice or prevent the court from arriving at a just decision.

The court must record its reasons for allowing or disallowing such an application, ensuring that the power is not used as a tool for dilatory tactics but as a means to ensure a fair and complete adjudication. The spirit of procedural law, as observed by Vivian Bose J. in Sangram Singh v. Election Tribunal, Kota[9] (cited with approval in Salem II[2] and Janachaitanya Housing Ltd.[6]), is "something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up."

Conclusion

The journey of Order 18 Rule 2(4) CPC, from its insertion to its deletion, reflects the ongoing efforts to balance procedural efficiency with the imperatives of substantive justice. While the explicit statutory provision empowering courts to permit examination of witnesses "at any stage" for recorded reasons no longer exists, its underlying principle has found continued expression through the invocation of inherent powers under Section 151 CPC. The judiciary, through a series of interpretations, has affirmed that the absence of a specific rule does not render the courts powerless to prevent a miscarriage of justice. The discretion to allow evidence at a later stage, though to be exercised sparingly and with caution, remains a vital tool in the hands of the court to ensure that all necessary material is brought on record for a just and effective decision. This approach underscores the dynamic nature of procedural law and its role as a handmaiden to justice, adapting to legislative changes while preserving the core judicial function of fair adjudication.

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