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Code of Civil Procedure, 1908 | Section 138

Section 138 CPC: Power of High Court to Require Evidence to Be Recorded in English

Section 138 of the Code of Civil Procedure, 1908 empowers a High Court to direct specified judges to record evidence in English in appealable civil cases. It also provides a procedure where a judge has sufficient reason for not complying with that direction.

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Section 138 CPC: Statutory text

Power of High Court to require evidence to be recorded in English

(1) The High Court may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

Statutory wording reproduced from the supplied webpage. Consult the applicable official text, rules, notifications and local amendments for proceedings in a particular jurisdiction.

Meaning and scope of Section 138 CPC

The provision deals with the language and method of recording evidence, rather than the language in which every participant must speak. Its purpose is to provide a written evidentiary record for civil proceedings, particularly where an appellate court may later need to examine that record.

1. High Court's power under subsection (1)

The High Court may issue a notification published in the Official Gazette. The notification can identify individual judges or a class of judges and direct them to take down evidence in English in cases in which an appeal is allowed. The recording must also follow the prescribed manner.

Section 138 does not itself impose a universal English-only requirement on every subordinate civil court. Whether a particular judge is covered depends on the relevant notification and the applicable procedural rules.

2. Cases in which an appeal is allowed

The phrase refers to cases for which an appeal is legally available. It should not be read as saying that every order or decision is appealable: appeal rights depend on the Code and any applicable special law.

3. Meaning of prescribed manner

The requirement to follow the prescribed manner must be read with the procedural rules governing the recording of evidence. Those rules may address how depositions are recorded, authenticated and made part of the court record.

What if the judge cannot record evidence as directed?

Subsection (2) addresses a situation in which sufficient reason prevents the judge from complying with a direction under subsection (1). The judge must record the reason and cause the evidence to be written down from the judge's dictation in open court.

Key distinction: The exception is not an unrestricted choice to disregard a High Court notification. Section 138(2) requires a sufficient reason to be recorded and specifies an alternative method for creating the written record.

Illustrative example

Suppose a civil judge is covered by a High Court notification requiring evidence in an appealable case to be recorded in English. If a sufficient reason prevents the judge from recording the evidence in the directed manner, the judge must record that reason and arrange for the evidence to be taken down in writing from dictation in open court, as Section 138(2) provides.

  • Section 137 CPC: Language of subordinate courts, State Government directions and certain translation requirements.
  • Order XVIII CPC: Rules governing the hearing of suits and examination and recording of witness evidence, subject to applicable amendments and court rules.
  • Section 139 CPC: Persons authorized to administer oaths on affidavits; this is distinct from the recording of oral evidence.
  • Article 348 of the Constitution: Addresses language in specified higher-court proceedings and authoritative legal texts; it does not replace the specific mechanism of Section 138 CPC.

For the authoritative legislation and amendments, consult the Government of India's India Code portal. For directions issued under Section 138, check the relevant High Court's official notifications and civil rules.

Frequently asked questions

Can a High Court direct evidence to be recorded in English?

Yes. Section 138(1) permits a High Court to issue an Official Gazette notification covering specified judges or categories of judges in cases where an appeal is allowed.

Does Section 138 require all civil court evidence to be in English?

No. Its application depends on a notification under Section 138(1), and the provision concerns evidence in appealable cases.

What happens if a judge cannot comply with the notification?

Under Section 138(2), the judge must record the sufficient reason and have the evidence written down from the judge's dictation in open court.

How is Section 138 different from Section 137 CPC?

Section 137 concerns the language of subordinate courts and certain written proceedings; Section 138 specifically authorizes High Court directions on recording evidence in English.

Conclusion

Section 138 CPC provides a notification-based mechanism for High Courts to require English-language recording of evidence in appealable civil cases. Where compliance is prevented by sufficient reason, the judge must document the reason and have the evidence recorded from dictation in open court. The governing notification and local court rules remain important in individual cases.