3. Where an application is made for the purpose of enabling the 2nd Schedule party applying to obtain the evidence of a witness resident out of the Witness out jurisdiction, the Court shall require to be satisfied that the evidence of jurisdicof the witness is material, and that he is permanently residing out of tion. the jurisdiction, or does not intend to come within the jurisdiction within a reasonable time.

Order XXXI.

SITTINGS OF COURT.

1. Subject to the provisions of the Ordinance, the Court may, at its Days of discretion, appoint any day or days, from time to time, for the hearing sitting. of causes as circumstances require.

2. Subject to special arrangements for any particular day, the Order of business of the day shall be taken as nearly as circumstances permit business at in the following order;

(a) At the commencement of the sitting judgments shall be delivered in matters standing over for that purpose;

(b) Ex parte motions; and

(c) Motions on notice, and arguments on showing cause against orders returnable on that day shall then be taken in the order in which those matters respectively stand on the motion list;

(d) The causes on the cause list shall then be called on in their order unless the Court sees fit to vary the order.

Order XXXII.
TRIAL.

sittings.

Court or

1. The trial of every suit shall take place before a Divisional Court Trial by or a District Commissioner, and such Court or Commissioner, as the Divisional case may be, shall determine all questions of fact or of law or partly District of fact and partly of law, arising in such suit.

Commis

2. If the Court considers it conducive to justice, it may direct that sioner. any one or more issues of fact or law arising in any suit may be tried Trial of before any other issue or issues.

different issues.

Order XXXIII.
EVIDENCE.

how taken.

1. In the absence of any agreement between the parties, and Evidence of subject to these rules, the witnesses at the trial of any cause shall witnesses, be examined vivâ voce, and in open Court; but the Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial on such conditions as the Court may think reasonable; or that any witness, whose attendance in Court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise, before à Commissioner: provided that every

2nd Schedule witness making an affidavit so received shall be liable to cross-examination in open Court, unless the Court shall direct the cross-examination to take place in any other manner.

Admission of affidavits.

Evidence

prior to hear

ing.

Who may

How to be taken.

2. The Court may, in its discretion, if the interests of justice appear absolutely so to require (for reasons to be recorded in the minutes of proceedings), admit an affidavit in evidence, although it is shown that the party against whom the affidavit is offered in evidence has had no opportunity of cross-examining the person making the affidavit. 3. The Court may, in any cause or matter where it shall appear necessary for the purpose of justice, make order for the examinaany tion before any officer of the Court, or other person, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court may direct.

4. Any Judge, or Commissioner, or other officer of Court, shall, on take evidence. the request in writing of any Court before which a cause or matter is pending, so take evidence for the purposes of the cause or matter. 5. The evidence, when not directed to be taken upon interrogatories previously settled, shall be taken as nearly as may be as evidence at the hearing of a suit, and then the note of evidence shall be read over to the witness, and be signed by him. If he refuses the Judge or Commissioner shall add a note of his refusal, and the statement may be used as if he had signed it.

Evidence before suit instituted.

Facilities for

&c.

6. Evidence may be taken in like manner on the application of any person before suit instituted, where it is shown to the satisfaction of the Court on oath that the person applying has good reason to apprehend that a suit will be instituted against him in the Court, and that some person within the jurisdiction at the time of the application can give material evidence respecting the subject of the apprehended suit, but that he is about to leave the jurisdiction, or particular jurisdiction, or that from some other cause the person applying will lose the benefit of his evidence if it be not at once taken; and the evidence so taken may be used at the hearing, subject to just exceptions: provided always that the Court may impose any terms or conditions with reference to the examination of such witness, and the admission of his evidence as to the Court may seem reasonable.

7. Any party desiring to give in evidence any deed or other instruproving deed, ment which shows upon the face of it that it has been duly executed, may deliver to the opposite party not less than four clear days before the return day a notice in writing specifying the date, nature and parties to such deed or instrument, and requiring the opposite party to admit that the same was executed as it purports to have been, saving all just exceptions as to its admissibility, validity and contents; and if at or before the hearing of the suit the party so notified shall neglect or refuse to give such admission the Court may adjourn the hearing in order to enable the party tendering such deed or instrument to obtain proof of the due execution thereof, and upon production of such proof the Court may order the costs of such proof to be paid by the party so neglecting or refusing, whether he be the successful party or not.

Order XXXIV.

NON-ATTENDANCE OF PARTIES AT HEARING.

2nd Schedule

1. Where a cause on the cause list has been called, if neither party Non-appearappears the Court shall, unless it sees good reason to the contrary, ance of both parties.

strike the cause out of the cause list.

2. If the plaintiff does not appear the Court shall, unless it sees Of plaintiff. good reason to the contrary, strike out the cause (except as to any counter-claim by the defendant) and make such order as to costs in favour of any defendant appearing as seems just provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.

3. If the plaintiff appears and the defendant does not appear or Of defendant. sufficiently excuse his absence or neglects to answer when duly called, the Court may, upon proof of service of the summons, proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant.

appear.

4. Where the defendant to a cause which has been struck out under Counter-claim rule 2 of this Order has a counter-claim the Court may, on due proof where plaintiff does not of service on the plaintiff of notice thereof, proceed to hear the counterclaim and give judgment on the evidence adduced by the defendant, or may postpone the hearing of the counter-claim and direct notice of such postponement to be given to the plaintiff.

5. Any judgment obtained against any party in the absence of such party may on sufficient cause shown be set aside by the Court upon such terms as may seem fit.

6. Any cause struck out may by leave of the Court be replaced on the cause list on such terms as to the Court may seem fit.

Order XXXV.

PROCEEDINGS AT THE HEARING.

Setting aside of judgment made in ab

sence of party.

Relisting of

cause struck out.

1. The order of proceeding at the hearing of a cause, in cases in Where statewhich statements of claim and of defence have been filed, shall be ments filed. as follows:

2. The party on whom the burden of proof is thrown by the nature Burden of of the material issues or questions between the parties, according as Party to proof. the Court may determine, has the right to begin. He may state his begin.

case.

3. He shall then produce his evidence and examine his witnesses- Evidence. in-chief.

4. When the party beginning has concluded his evidence, he shall Summing up. ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.

2nd Schedule

Case of other party.

General reply.

Case closed.

Evidence in reply.

Address thereon.

Documentary evidence.

When documents to be put in.

Marking documents.

Where

written

filed or

parties are illiterate.

5. When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.

6. If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence.

7. The case on both sides shall then be considered closed.

8. If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.

9. Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the Court, and the party beginning shall be entitled to the general reply.

10. Documentary evidence must be put in and read, or taken as read by consent.

11. If either party intends to use documents in evidence he must lodge them with the Registrar at or previously to opening his case, together with a signed list of such documents, and he shall not afterwards be at liberty to put in any documents or additional documents unless it shall appear to the Court that there was sufficient reason for delaying their production.

12. Every document put in evidence shall be marked by the officer of the Court at the time, and shall be retained by the Court during the hearing, and returned to the party who put it in, or from whose custody it came, immediately after the judgment, unless it is impounded by order of the Court.

13. In cases where written pleadings have not been filed, or the pleadings not parties or either of them are incapable of understanding their effect with sufficient accuracy, the preceding rules respecting the order of proceeding at the hearing shall be varied by the Court so far as may be necessary. In particular, the statement of the defendant in defence. where he does not admit the whole cause of action, shall be heard immediately after the plaintiff has concluded the statement of his claim and of the grounds thereof, and before any witnesses are examined, unless in any case the Court shall see reason to direct otherwise.

Facts occurring after in

stituting suit.

Order XXXVI.

SUPPLEMENTAL STATEMENTS.

1. Facts or circumstances occurring after the institution of a suit may by leave of the Court be stated at any stage of the proceedings previous to the conclusion of the hearing, and the Court may make such order as seems just respecting the proof of such facts or circumstances, or for affording all parties concerned leave and opportunity to meet the statements so introduced.

Order XXXVII.

INQUIRIES AND ACCOUNTS.

2nd Schedule

account may

1. In any cause or matter in which all parties interested, who are Questions of under no disability, consent thereto, and also without such consent in fact or of any cause or matter requiring any prolonged examination of docu- be investiments or accounts or any scientific or local examination, which cannot gated by in the opinion of the Court, having regard to the other business before referee. it, conveniently be made by the Court in the usual manner, the Court may at any time, for reasons stated on the Minutes, on such terms as it may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a referee, who shall be a District Commissioner or other competent person, to be agreed on between the parties or appointed by the Court.

2. In all such cases the Court shall furnish the referee with such Instructions part of the proceedings and such information and detailed instructions to referee. as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.

accounts.

3. The Court may at any stage of the proceedings direct any such Interim innecessary inquiries or accounts to be made or taken notwithstanding quiries or that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

referee.

4. The referee may, subject to the order of the Court, hold the General inquiry at or adjourn it to any place which he may deem most con- powers of venient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall so far as practicable proceed with the inquiry de die in diem.

5. Subject to any order to be made by the Court ordering the Evidence. inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses may be enforced by subpoena; and every such inquiry shall be conducted in the same manner as nearly as circumstances will admit as trials before a Judge of the Court, but not so as to make the tribunal of the referee a public Court of Justice.

6. Subject to any such order as last aforesaid, the referee shall Referee's have the same authority in the conduct of any inquiry as a Judge of the Court when presiding at any trial.

7. Nothing in these rules contained shall authorize any referee, not being a District Commissioner, to commit any person to prison or to enforce any order by attachment or otherwise; but the Court may, in respect of matters before a referee, make any order of attachment or commitment it may consider necessary.

authority in the inquiry.

Limitation

in certain particulars.

tions or facts

8. The referee may before the conclusion of any inquiry before Referee may him, or by his report under the reference, submit any question arising report questherein for the decision of the Court, or state any facts specially. specially. 9. The proceedings and report in writing of the referee shall be Effect of received in evidence in the case unless the Court may have reason to report by

referee.