SCHEDULE II.
Ords. 30-32.

ORDER XXX.

POSTPONEMENT OF HEARING.

1. The Court may postpone the Hearing of any cause on being In what satisfied that the postponement is likely to have the effect of better Cases. ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose of mere delay. The postponement may be made on such terms as to the Court seems just.

2. Where such an application is made on the ground of the Absence of absence of a witness, the Court shall require to be satisfied that his Witness. evidence is material, and that he is likely to return and give evidence within a reasonable time.

diction.

3. Where an application is made for the purpose of enabling Witness out the party applying to obtain the evidence of a witness resident out of Jurisof the jurisdiction, the Court shall require to be satisfied that the evidence of the witness is material, and that he is permanently residing out of 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 Days of its discretion, appoint any day or days, from time to time, for the Sitting. Hearing of causes as circumstances require.

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

(a) Ex parte motions.

(b) Motions on notice, and arguments on showing cause.

(c) Judgment summonses.

(d) Interpleader issues.

(e) Judgments in matters standing over for that purpose.

(f) Causes in the order in which they appear in the cause list, unless the Court see fit to vary the order.

ORDER XXXII.

TRIAL.

Sittings.

Court or

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

missioner.

Different

2. If the Court considers it conducive to justice, it may direct Trial of that any one or more Issues of Fact or Law arising in any Suit Issues. may be tried before any other Issue or Issues.

SCHEDULE II.
Ord. 33.

Evidence of Witnesses, how taken.

Admission of
Affidavits.

Evidence preparatory to Hearing.

Who may take Evidence.

How to be taken.

Evidence

before Suit instituted.

ORDER XXXIII.

EVIDENCE.

1. In the absence of any agreement between the parties, and subject to these Rules, the witnesses at the trial of any cause shall be examined vitâ 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 a Commissioner: provided that every 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.

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 any Order for the examination 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 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.

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,

* As to Commissions to take evidence in England, see 22 Vict. c. 20, and 48 & 49 Vict. c. 74.

Ords. 33-34.

or particular jurisdiction, or that from some other cause the person SCHEDULE II. 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.

&c.

7. Any party desiring to give in evidence any deed or other Facilities for instrument which shows on the face of it that it is duly executed, proving Deed, may deliver to the opposite party not less than four clear days before the return day a notice in writing, specifying the date and parties and the nature of the deed or instrument, and requiring such party to admit the same, saving all just exceptions as to its admissibility, validity and contents; and if at the Hearing the party so notified neglect or refuse to give such admission, the Court may adjourn to enable the party tendering such deed or instrument to formally prove the same, and, upon the production of such proof, the Court may order the costs of such proof to be paid by the party neglecting or refusing to admit the same.

ORDER XXXIV.

NON-ATTENDANCE OF PARTIES AT HEARING.

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

Parties.

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 Of Defendant. or 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.

4. Where the Defendant to a cause which has been struck out under Rule 2 of this Order has a counter-claim the Court may, on due proof of service on the Plaintiff of notice thereof, proceed to hear the counter-claim and give judgment on the evidence adduced by the Defendant, or may postpone the Hearing of the counterclaim and direct notice of such postponement to be given to the Plaintiff.

Counterclaim where Plaintiff does not appear.

SCHEDULE II.

5. Any judgment obtained against any party in the absence of Ords. 34-35. such party may, on sufficient cause shown, be set aside by the Court upon such terms as may seem fit.

Setting aside Judgment given in

Absence of

Party.

Re-listing

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.

Causes struck

out.

Where State

ments Filed.

Burden of

Proof.

Party to begin.

Evidence.

Summing-up.

Case of other
Party.

General Reply.

Case closed.

Evidence in
Reply.

Address thereon.

Documentary
Evidence.

When Documents to be put in.

ORDER XXXV.

PROCEEDINGS AT THE HEARING.

1. The Order of Proceeding at the Hearing of a cause, in cases in which a statement of claims and of defence have been filed, shall be as follows:

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

3. He shall then produce his evidence and examine his witnessesin-chief.

4. When the party beginning has concluded his evidence, he shall 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. 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 SCHEDULE II. documents unless it shall appear to the Court that there was suffi- Ords. 35–37. cient reason for delaying their production.

12. Every document put in evidence shall be marked by the Marking Officer of the Court at the time, and shall be retained by the Documents. 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.

Illiterate.

13. In cases where written pleadings have not been filed, or the Where parties or either of them are incapable of understanding their Parties are effects 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.

14. The Judge may in all cases disallow any question put in Disallowance cross-examination which may appear to him to be vexatious and of vexatious not relevant to any matter proper to be inquired into in the cause or matter.

ORDER XXXVI.
SUPPLEMENTAL STATEMENTS.

Questions.

1. Facts or circumstances occurring after the institution of a Facts occurSuit may by leave of the Court be stated at any stage of the ring after instituting proceedings previous to the conclusion of the Hearing, and the Suit. 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.

Account may

Referee.

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 Fact or of in any cause or matter requiring any prolonged examination of be investidocuments or accounts or any scientific or local examination, which gated by cannot in the opinion of the Court, having regard to the other business before 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.

L.