Order XVIII Rule 5 CPC: How Evidence Is Taken in Appealable Cases
Order 18 Rule 5 of the Code of Civil Procedure, 1908 prescribes how a witness's evidence is recorded in a civil case in which an appeal is allowed. It requires recording in the language of the court under judicial supervision, subject to the alternatives specified in the rule.
Text of Order XVIII Rule 5 CPC
5. How evidence shall be taken in appealable cases.
In cases in which an appeal is allowed, the evidence of each witness shall be,-
(a) taken down in the language of the Court,-
- in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or
- from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.
Meaning and scope of Rule 5
Appealable case: A proceeding in which the law provides a right of appeal against the relevant decree or order. Rule 5 addresses the formal recording of oral witness testimony in such proceedings. The availability and scope of an appeal are determined by the applicable provisions, including Section 96 CPC (appeals from original decrees) and other relevant appellate provisions.
Language of the court: The witness's evidence must be recorded in the language of the court as required by Rule 5. Provisions on the language of subordinate courts and the recording of evidence should be read together with Sections 137 and 138 CPC and Order XVIII Rules 6 and 9.
Judicial supervision: Under clause (a)(i), the judge may record the testimony personally or have it written in the judge's presence and under the judge's personal direction and supervision. Clause (a)(ii) also permits transcription directly from the judge's dictation onto a typewriter.
Mechanical recording: Clause (b) permits mechanical recording in the language of the court in the judge's presence, where the judge directs that method and records reasons. The precise recording process may also be affected by applicable High Court rules and lawful procedural directions.
Relationship between Rules 4 and 5
Order XVIII Rule 4 generally requires examination-in-chief by affidavit and provides for cross-examination and re-examination before the court or a commissioner. Rule 5 supplies the requirements for recording evidence in appealable cases. Both rules must be read harmoniously rather than treating Rule 5 as eliminating the affidavit procedure under Rule 4.
The Supreme Court discussed the interaction of these provisions in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702 and Salem Advocate Bar Association, T.N. v. Union of India (2005) 6 SCC 344. The applicable procedure remains subject to statutory amendments and binding judicial directions.
Practical considerations
Parties should ensure that evidence is recorded in the prescribed manner, that any necessary objections are raised on the record, and that the deposition accurately reflects the witness's testimony. Where a commissioner records evidence under Rule 4, the statutory rules governing that process and the court's orders must also be followed.
Related provisions and official sources
See the Code of Civil Procedure guide, Order XVIII Rule 6 (interpretation of deposition), Rule 8 (memorandum of evidence) and Rule 9 (evidence in English).
For the authoritative legislative text and amendments, consult the Government of India's India Code portal and Legislative Department. State amendments, High Court rules and case-specific directions should also be checked where relevant.
This article provides general legal information, not advice for a particular proceeding. Legislative and procedural requirements may vary with jurisdiction and case type.