Indian Kanoon - Search engine for Indian Law

3. He further invites our attention to the provisions of Order XVI Rule 1 and also to Order XVI Rule 21 and submits that when the provisions of Order XVI, as indicated by Rule 21 therein, apply to parties summoned also, the same is a further indication of the party to the lis being equated with a witness.

4. He further places reliance upon Order XVIII Rules 3 (A), 4, 5 and 7 to submit that the Rules for recording of evidence also do not make any distinction between a party and a witness; there are no separate rules for a party and a witness, and therefore a party has to be equated with a witness. Relying upon the provisions of Order XVIII Rule 17 which contains the power of the Court to recall and examine witness, he submits that the power is also used to recall the party also, which again is an instance of the Code treating the party as equal to the witness. He further places reliance upon the provisions of Order XVIII Rule 19, the power of the Court to get statements recorded on commission and contends that this power is wp7717 of 2019.odt exercisable in respect of the party also, in addition to being available for a witness, which again would indicate that the party is equated with the witness by the Court.

22. As against the above a 'witness', though not defined either in the C.P.C. or the Evidence Act, in normal parlance is understood as a person, who, in a lis of an adversarial nature, or even otherwise, is called upon to give evidence as to any set of facts, documents or otherwise as to any opinion, rendered by him, in case he is an expert on the issue for which he is summoned, which is in support of any plea as is raised by the party to the suit, be it the wp7717 of 2019.odt plaintiff(s) or the defendant (s). The C.P.C. refers to a 'witness', in Order VII Rule 14(4); Order VIII Rule 1-A(4); Order XIII Rule 3; Order XVI; Order XVI-A; Order XVIII Rules 3-A, 4 to 6, 8, 11 to 13, 16, 17 and 19.

(ii) F.D.C. Limited (supra) relied upon by learned Counsels Mr. Shareef and Mr. Kalwaghe, was a case in which the Court was considering the provisions of Order XVIII Rule 4 of C.P.C. which deal with recording of examination-in-chief of a witness on affidavit, in which the Court held that the provisions of Order XVIII Rule 4 also apply to parties who are examined, in light of the provisions of Order XVIII Rule 3-A, which requires a party to appear before other witnesses and Order XVI 16 Rule 21 which specifically applies rules as to witnesses to parties summoned. It would be relevant to reproduce the reasoning which is as under :

"17. It was sought to be contended that the provisions contained in Rule 4 are applicable only to the evidence of wp7717 of 2019.odt witnesses and not to the parties since Rule 4 refers to "witnesses" and not to "the parties". The argument holds no water. Undoubtedly, un-amended Rule 4 referred to the expression "evidence of witnesses" and the amended rule also uses the expression "examination if chief of witnesses".

It is also true that sub title in relation to the unamended Rule 4 was "witness to be examined in open court". However, in case of the amended Rule 4 it reads "recording of evidence". Besides, as regards the expression witness in the said rule, either in the unamended or amended, the reference thereof was and is not restricted to the persons other than the parties to the suit, but, it also applied and applies to the parties themselves and this is abundantly clear from Rule 3-A of Order XVIII and Rule 21 of Order XVI which were on the statute book even prior to amendment to Rule 4. Rule 3-A of Order XVIII provides that:--