Code of Civil Procedure, 1908 | Order 18 | Recording of evidence

Order XVIII Rule 8 CPC - Memorandum When Evidence Is Not Taken Down by Judge

Order XVIII Rule 8 of the Code of Civil Procedure, 1908 deals with the Judge's duty to prepare a written memorandum of the substance of a witness's deposition when evidence is not otherwise recorded in the manner specified by the rule.

Text of Order XVIII Rule 8 CPC

Meaning and purpose of Rule 8

The provision creates a contemporaneous record of the substance of oral testimony when the Judge is not personally writing the evidence, dictating it in open court, or having it mechanically recorded in the Judge's presence. It is designed to preserve an accountable judicial record of the testimony received.

Requirements under Order 18 Rule 8

1. Trigger: The rule applies where the evidence is not taken down in writing by the Judge, from the Judge's dictation in open court, or mechanically recorded in the Judge's presence.
2. Timing: The Judge must prepare the memorandum as the examination of each witness proceeds, rather than relying only on a later recollection.
3. Contents: The memorandum must capture the substance of what each witness deposes. The rule does not demand a verbatim transcript in the memorandum itself.
4. Authentication: The memorandum must be written and signed by the Judge.
5. Court record: The signed memorandum forms part of the record of the suit.

Related provisions governing witness evidence

Order XVIII Rule 4 - Recording of evidence

Rule 4 governs the recording of evidence, including examination-in-chief by affidavit and the recording of cross-examination and re-examination by the court or a commissioner, subject to its terms. Rule 8 should be read in the context of the applicable evidence-recording procedure; it does not replace Rule 4.

Order XVIII Rule 5 - Evidence in appealable cases

Rule 5 prescribes how witness evidence is to be recorded in cases in which an appeal is allowed. It is relevant to understanding the different methods by which evidence may be reduced to writing.

Order XVIII Rule 6 - Interpretation of deposition

Rule 6 addresses interpretation of recorded evidence to a witness who does not understand the language in which it was recorded.

Order XVIII Rule 7 - Evidence under section 138

Rule 7 concerns the form and reading, signing, interpretation and correction of evidence taken down under section 138 of the CPC.

Order XVIII Rules 9 and 10

Rule 9 deals with circumstances in which evidence may be taken in English. Rule 10 allows the court to record a particular question and answer when there is a special reason to do so.

Practical illustration

Suppose a witness gives oral evidence in a civil trial and that evidence is not written down by the Judge, dictated in open court, or mechanically recorded in the Judge's presence. Rule 8 requires the Judge, during the examination, to prepare and sign a memorandum summarising the substance of that witness's deposition. The memorandum becomes part of the case record.

Scope and practical considerations

Rule 8 establishes a specific recording duty; it does not itself prescribe the consequences of every defect in recording evidence. Whether an irregularity affects a proceeding depends on the applicable procedural law, the record, and the circumstances of the case. Relevant High Court amendments and court rules should also be checked where applicable.

Official legal source

For the central legislation and amendments, consult the Code of Civil Procedure, 1908 on India Code. The statutory text above is reproduced from the source webpage; readers should check the current official text and any jurisdiction-specific amendments before relying on it in proceedings.

This article provides general legal information, not advice for a particular case.