Preliminary Examination of Witnesses under the CPC (Code of Civil Procedure)

Jurisdiction and scope: India — ordinary civil suits governed by the central Code of Civil Procedure, 1908 and the Bharatiya Sakshya Adhiniyam, 2023. This note addresses preparing, tendering and recording witness evidence at trial. State amendments, High Court rules, commercial-court directions, family-court procedure, tribunals and special statutes must be checked separately.

Law checked: 6 October 2026. Next review: 6 April 2027, or earlier if Order XVIII CPC, the Bharatiya Sakshya Adhiniyam or the selected court’s evidence directions change.

Short answer

Prepare the examination-in-chief as a compliant affidavit under Order XVIII rule 4, supply it to the opposite party, and keep the witness and relied-on originals available for the court’s directions on proof, cross-examination and re-examination. Do not assume that marking a document makes it admissible. Cross-examination may range beyond the facts stated in chief so long as the governing evidence rules permit the questions. Re-examination ordinarily explains matters raised in cross-examination; new matter requires the court’s permission and gives the adverse party a further right to cross-examine on that matter.

Procedure

1. Identify the issues and burden before drafting. Map each proposed witness to facts in issue, relevant facts and the documents the witness can authenticate. Remove hearsay, argument and legal submissions from the affidavit unless a specific admissibility rule applies.
2. Prepare examination-in-chief by affidavit. Order XVIII rule 4(1) provides that examination-in-chief shall be on affidavit and that copies be supplied to the opposite party. The Supreme Court has confirmed that the amended rule applies “in every case,” while preserving the court’s control over admissibility and the manner of recording later examination.
3. Build a document-proof plan. List every exhibit referred to, who can prove it, whether the original is available, and the applicable primary- or secondary-evidence foundation. The Supreme Court has made clear that an exhibit number alone does not make an otherwise inadmissible document evidence.
4. Obtain directions for recording evidence. Under rule 4(2), cross-examination and re-examination may be taken by the court or by a commissioner appointed by it. The court determines the route, having regard to the case and its own directions. Preserve objections and endorsements in the manner required by rule 4.
5. Conduct examination in the statutory order. Sections 142 and 143 of the Bharatiya Sakshya Adhiniyam define examination-in-chief, cross-examination and re-examination and prescribe their order. The adverse party cross-examines if it wishes; the party calling the witness may then re-examine.
6. Apply the correct scope. Section 143(2) requires chief and cross-examination to relate to relevant facts, but expressly says cross-examination need not be confined to facts mentioned in chief. Section 143(3) directs re-examination to explaining matters referred to in cross-examination. If new matter is introduced in re-examination with permission, the adverse party may further cross-examine on it.
7. Control leading questions correctly. Section 146 generally bars leading questions in chief or re-examination when the adverse party objects, unless the court permits them; introductory, undisputed or sufficiently proved matters should be permitted. Leading questions may be asked in cross-examination.
8. Use the own-witness permission procedure. Avoid treating “hostile” as a self-executing label. Under section 157, the court may permit the person who called the witness to ask questions that the adverse party could ask in cross-examination. The party does not automatically lose the right to rely on the useful part of that witness’s evidence.
9. Verify the record. Check that objections, admitted exhibits, deferred proof issues, commissioner remarks, cross-examination, re-examination and any further cross-examination are accurately recorded. In appealable cases, Order XVIII rule 5 governs how evidence is taken down; other cases and local electronic-recording rules require separate checking.

Documents and decisions checklist

• Issues and burden-of-proof chart.
• Witness list with the fact each witness proves.
• Examination-in-chief affidavit and proof of supply.
• Exhibit list, originals and admissibility foundation for each document.
• Translations and interpreter request where required.
• Commissioner order, fee and recording directions if evidence is not taken by the judge.
• Cross-examination plan tied to relevant facts, credibility rules and documentary contradictions.
• Re-examination plan limited to explanation unless permission is sought for new matter.
• Daily order sheets and a checked copy of the recorded deposition.
• Applicable State amendment, High Court civil rules, commercial-court directions and special-statute procedure.

Common errors

• Describing cross-examination as confined to the examination-in-chief.
• Treating affidavit examination-in-chief as a discretionary exception rather than the rule under Order XVIII rule 4.
• Assuming that mentioning or marking a document proves its contents or admissibility.
• Using “hostile” as a formal declaration instead of seeking the court’s permission under section 157.
• Introducing new matter in re-examination without permission and without allowing further cross-examination.
• Using obsolete Indian Evidence Act section numbers without checking the Bharatiya Sakshya Adhiniyam, in force from 1 July 2024.

Official sources

Automated-research disclosure: This correction was prepared through automated comparison with the official statutory and Supreme Court materials linked above. Practitioners must still check the selected court’s current rules, amendments, case-management orders and evidentiary rulings.