Order XVIII Rule 2 CPC: Contemporary Judicial Interpretation and Procedural Dynamics

Order XVIII Rule 2 of the Code of Civil Procedure, 1908: Contemporary Judicial Interpretation and Procedural Dynamics

Introduction

Order XVIII of the Code of Civil Procedure, 1908 (“CPC”) governs the course of trial in civil suits. While post-2002 scholarship has focused predominantly on the affidavit regime under Rules 4 and 5, Rule 2 – which delineates the right to begin, statement of case, and production of evidence – remains the procedural fulcrum of civil trials in India. Its seemingly modest text masks complex questions concerning burden of proof, sequencing of evidence, party autonomy, and judicial discretion. Recent appellate jurisprudence – notably Salem Advocate Bar Association v. Union of India[1], Rasiklal Manikchand Dhariwal v. M.S.S. Food Products[2] and allied authorities – has revitalised the doctrinal and practical significance of Rule 2. This article undertakes a critical analysis of the rule’s legislative evolution, its interaction with cognate provisions, and the contours supplied by contemporary case-law.

Legislative Text and Evolution

Order XVIII Rule 2 (post-1976 substitution) reads, in substance:

(1) On the day fixed for the hearing of the suit, the party having the right to begin shall state his case and produce his evidence.
(2) The other party shall then state his case and produce his evidence.
(3) The party beginning may then reply generally on the whole case.
(4) The Court may, for reasons to be recorded, permit deviation from the above sequence.

Two legislative moments merit emphasis. First, the 1976 Amendment Act substituted the original provision to crystallise a three-stage structure (statement–evidence–reply) and to temper rigidity by recognising judicial discretion under sub-rule (4). Secondly, the 1999–2002 amendment cycle, while leaving the text of Rule 2 untouched, introduced an affidavit-based model for examination-in-chief (Rule 4) and the “case management” ethos that informs judicial deployment of discretion under Rule 2(4) today.[1]

Analytical Framework

1. Right to Begin and Burden of Proof

The classical rationale is evidentiary: the party bearing the initial burden should present its narrative first. However, sub-rule (4) recognises circumstances where justice requires the Court to invert or modify the sequence, thus aligning procedural order with substantive fairness. Rasiklal Manikchand Dhariwal clarified that a successor judge proceeding under Order XVIII Rule 15 does not disturb the allocation of the “right to begin”; the successor merely continues from the stage reached by the predecessor.[2]

2. Statement of Case vis-à-vis Affidavit Evidence

Following Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd.[3], the Supreme Court endorsed a harmonious construction between Rule 2 and the affidavit regime of Rule 4. The “statement of case” under Rule 2 is oral, whereas the “examination-in-chief” may be on affidavit. Consequently, the chronological marker for “commencement of trial” – relevant for the proviso to Order VI Rule 17 and other provisions – is the settlement of issues and fixation of the first hearing, not the physical appearance of a witness.[4]

3. Judicial Discretion under Sub-Rule (4)

Indian courts routinely invoke Rule 2(4) to accommodate pragmatic concerns. Examples include:

  • Permitting defendants to open evidence first where only statutory defences are in issue.
  • Allowing extensive reply evidence when electronic records are belatedly produced (K.K. Velusamy v. N. Palanisamy[5]).
  • Managing multiple sets of defendants with divergent interests to avoid prejudice (Sathya v. Periyasamy[20]).

While discretion is wide, judicial reasoning must be recorded – an imperative underscored in Salem Advocate Bar Association (II), which linked transparent reasoning to constitutional guarantees of fair trial.[1]

Key Judicial Pronouncements

A. Salem Advocate Bar Association (II) (2005)

Although primarily concerned with ADR (s. 89) and affidavit evidence (Rule 4), the Court contextualised Rule 2 within a larger shift from procedural formality to case management. It warned that rigid sequencing should not become an instrument of delay, signalling a purposive reading of Rule 2(4).[1]

B. Rasiklal Manikchand Dhariwal (2011)

The appellants argued that judgment by a successor judge who had not “heard” arguments offended Rule 2. The Court rejected the contention, holding that Order XVIII Rule 15 creates an express exception; procedural continuity, not identity of the judge, satisfies the mandate of Rule 2.[2]

C. K.K. Velusamy v. N. Palanisamy (2011)

The judgment clarified the interface between Rule 2 and the inherent power under s. 151. While Rule 2 governs sequence and closure of evidence, reopening of evidence post-closure is governed by s. 151 (read with the now-deleted Rule 17-A). Courts must balance finality with justice, and record reasons, thereby reinforcing the discipline introduced by Rule 2.[5]

D. High Court Discourse on “Commencement of Trial”

The Gujarat High Court in Saiyed Rashedakhatun v. Vishnubhai Ambalal Patel[25] and the Madhya Pradesh High Court in Smt. Basanti Bai v. Kalyanchandra Sharma[24] treated the filing of affidavits under Rule 4 as the commencement of trial for purposes of the proviso to Order VI Rule 17. Both courts relied on the logic of Rule 2: once the “case” is stated and evidence is produced, trial has in fact begun, irrespective of oral testimony.

Interrelation with Cognate Provisions

1. Rule 3 and 3-A: Sequencing of Party-Witness Testimony

Rule 3 permits the party beginning to produce rebuttal evidence, and Rule 3-A (inserted 1976) mandates that a party wishing to testify must ordinarily do so before calling other witnesses. High Courts have balanced Rule 3-A with Rule 2(4), recognising that deviation may be allowed by recorded reasons (Ravi v. Ramar[15]). The objective remains to prevent tactical “last-minute” testimony while preserving judicial flexibility.

2. Rule 4–5 (Affidavit Regime)

Rule 2 is functionally upstream of Rules 4–5: the party “having the right to begin” now files an affidavit in lieu of oral examination-in-chief. Ameer Trading reconciled potential tension, holding that affidavit evidence satisfies the mandate of “produce his evidence” under Rule 2(1).[3]

3. Rule 15 (Successor Judge) and Rule 17 (Recall of Witnesses)

Rule 2’s sequencing must be read in harmony with Rule 15: procedural continuity overrides the physical presence of the original judge (Rasiklal Manikchand Dhariwal). Rule 17, which permits the Court to recall witnesses “at any stage,” cannot be used by parties to reset the sequence established by Rule 2; any such attempt must satisfy the stringent tests laid down in K.K. Velusamy.

4. Section 151 CPC

Section 151 serves as a safety-valve where strict application of Rule 2 would defeat justice. However, as emphasised in K.K. Velusamy, Section 151 cannot be invoked to routinely override the closure of evidence mandated by Rule 2(3). Discretion remains exceptional.

Contemporary Challenges

  • Abuse through Adjournments: Parties occasionally exploit the flexibility of Rule 2(4) to seek repeated adjournments at the stage of “statement of case.” The Supreme Court’s cost-centric deterrence in Salem Advocate Bar Association (II) provides a template for trial courts.
  • Digital Evidence Management: The rise of electronic records necessitates nuanced sequencing. Allowing defendants to lead digital evidence first (e.g., CCTV footage) may better serve truth-finding. Rule 2(4) is sufficiently elastic to permit such innovation, provided reasons are recorded.
  • Multiplicity of Defendants: Divergent defences raise questions as to who “begins.” Courts increasingly employ “grouping” orders, distinguishing between contesting and non-contesting defendants, again under Rule 2(4).

Recommendations

  1. High Courts should frame Practice Directions clarifying factors for exercising discretion under Rule 2(4) – e.g., complexity of issues, nature of defences, and probative value of proposed sequencing.
  2. Training modules under the National Judicial Academy ought to emphasise the recording of concise reasons when deviating from the default sequence, harmonising with the transparency mandate of Salem Advocate Bar Association (II).
  3. Integration with e-Courts: Cause-lists should digitally reflect the stage under Rule 2 to enhance predictability for litigants.

Conclusion

Order XVIII Rule 2, though structurally simple, orchestrates the evidentiary symphony of civil trials. Supreme Court jurisprudence has progressively moved from a literal to a purposive reading, empowering courts to tailor sequencing in aid of substantive justice while insisting on transparent reasoning and procedural discipline. In an era of docket congestion and technological change, the balanced elasticity of Rule 2 – fortified by Rules 3-A, 4–5, 15, 17 and Section 151 – remains indispensable to the efficient and fair administration of civil justice in India.

Footnotes

  1. Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 (SC).
  2. Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 (SC).
  3. Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 (SC).
  4. Saiyed Rashedakhatun v. Vishnubhai Ambalal Patel, 2014 SCC OnLine Guj —; see also Kailash v. Nanhku, (2005) 4 SCC 480.
  5. K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 (SC).
  6. Additional High Court and trial-court authorities are cited in the text: Ravi v. Ramar (Mad HC 2007); Smt. Basanti Bai v. Kalyanchandra Sharma (MP HC 2015); Sathya v. Periyasamy (Mad HC 2025).