1. General rule: Witnesses to be examined orally. (Act 56) (O. 38 r. 1)
Subject to the provisions of these rules and of the Evidence Act, 1950 and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.
2. Evidence by affidavit (O. 38 r. 2)
(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
(2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.
(3) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.
3. Evidence by particular facts (O. 38 r. 3)
(1) Without prejudice to rule 2, the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to ordering that evidence of any particular fact may be given at the trial–
(a) by statement on oath of information or belief; or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular place, by the production of a specified newspaper which contains a statement of that fact.
4. Limitation of expert evidence. (O. 38 r. 4)
The Court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.
5. Limitation of plans, etc. in evidence. (O. 38 r. 5)
Unless, at or before the trial, the Court for special reasons otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the commencement of the trial the parties, other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.
6. Expert evidence in action arising out of accident. (O. 38 r. 6)
(1) In an action arising out of an accident on land due to a collision or apprehended collision, unless at or before the trial the Court otherwise orders, the oral expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall not be receivable in evidence at the trial unless a copy of a report from him containing the substance of this evidence has been made available to all parties for inspection before the hearing of the summons for directions and an order made on the summons for directions or an application thereunder authorizes the admission of the evidence.
(2) The references in this rule to the summons for directions include references to any summons or application to which, under any of these rules, Order 25, rules 2 to 7, are to apply, whether with or without modifications.
7. Revocation of variation of orders under rules 2 to 6. (O. 38 r. 7)
Any order under rules 2 to 6 (including an order made appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order of the Court made at or before the trial.
8. Application to trials of issues, references, etc. (O. 38 r. 8)
The foregoing rules of this Order shall apply to trials of issues or questions of fact or law, references, inquiries and assessments of damages as they apply to the trial of actions.
9. Depositions; when receivable in evidence at trial. (O. 38 r. 9)
(1) No deposition taken in any cause or matter shall be received in evidence at the trial of the cause or matter unless–
(a) the deposition was taken in pursuance of an Order under Order 39, rule 1; and
(b) either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the trial.
(2) A party intending to use any deposition in evidence at the trial of a cause or matter must, a reasonable time before the trial, give notice of his intention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it was taken shall be received in evidence without proof of the signature being the signature of that person.
10. Court documents admissible or receivable in evidence. (O. 38 r. 10)
(1) Office copies of writs, records, pleadings and documents filed in the Registry shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the High Court shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, the High Court shall be deemed to be an office copy of that document without further proof unless the contrary is shown.
11. Evidence of consent of new trustee to act. (O. 38 r. 11)
A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person shall be evidence of such consent.
12. Evidence at trial may be used in subsequent proceedings.(O. 38 r. 12)
Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter.
13. Order to produce document at proceeding other than trial. (O. 38 r. 13)
(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.
(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter.
14. Form and issue of writ of subpoena. (O. 38 r. 14)
(1) A writ of subpoena must be in Form 67, 68 or 69 whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by an officer of the Registry.
(3) Before a writ of subpoena is issued a praecipe in Form 70 for the issue of the writ must be filed in the Registry; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name of firm and business address of that party’s solicitor.
15. More than one name may be included in one writ of subpoena ad testificandum (O. 38 r. 15)
The names of two or more persons may be included in one writ of subpoena ad testificandum.
16. Writ of subpoena duces tecum. (O. 38 r. 16)
(1) A writ of subpoena duces tecum must contain the name of one person only.
(2) Any person served with a writ of subpoena duces tecum shall sufficiently comply if he causes the document to be produced without attending personally.
17. Amendment of writ of subpoena. (O. 38 r. 17)
Where there is a mistake in any person’s name or address in a writ of subpoena, then if the writ has not been served, the party by whom the writ was issued may have the writ re-sealed in correct form by filing a second praecipe under rule 14(3) indorsed with the words "Amended and re-sealed".
18. Service of writ of subpoena. (O. 38 r. 18)
(1) Unless the Court otherwise orders, a writ of subpoena must be served personally and the service shall not be valid unless effected within 12 weeks after the date of issue of the writ.
(2) A writ of subpoena shall not be served on any person outside the jurisdiction.
19. Duration of writ of subpoena. (O. 38 r. 19)
A writ of subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.
20. Court records. (O. 38 r. 20)
(1) An officer of the High Court or of any Subordinate Court shall not be required by a writ of subpoena duces tecum to produce the records of the Court.
(2) If the original of any record of a Court or of any document filed in such Court is for any special reason required, a request for production thereof may, on the application of the party requiring the same, be addressed by the Registrar to that Court.
(3) No mark shall be placed upon any record or document produced under this rule.
21. Attendance of prisoner as witness or party. (81/52) (O. 38 r. 21)
(1) An application for an order under section 30 of the Prisons Ordinance for the production before the Court of a person confined in prison may be made ex parte by summons supported by an affidavit in Form 71.
(2) Unless the Court otherwise orders, the costs of conveyance of the witness in safe custody to and from the Court must be paid in the first instance by the party on whose application the order was issued and shall be costs in the cause.
(3) An order for the production of such person must be in Form 72.
22. Tender of expenses. (O. 38 r. 22)
A witness shall not be compelled to attend on a writ of subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, Court is extended to him.
23. Affidavit of service of writ of subpoena. (O. 38 r. 23)
An affidavit filed for the purpose of proving the service of a writ of subpoena must state when, where, how and by whom the service was effected.
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