43
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15. A defective or erroneous affidavit may be amended and re-sworn, by special leave of the Court, on such terms as to time, costs, and other things, as seem just.
16. Where an affidavit used in the Court is not in accordance with these rules, the Court may make such order respecting the costs of or connected with the affidavit as seems just.
17. Before an affidavit is used in the Court, the original office affidavit must be filed in the Court; and the original or an office copy thereof (that is, a copy sealed with the seal of the Court as evidence of its being a correct copy, and either made under the direction of the Court or produced to the Court for examination and sealing,) shall alone be recognised for any purpose in the Court.
Evidence de Bene Esse.
LVI. Where the circumstances of the case appear to the Court so to require, for S. R. 244. reasons to be recorded in the minutes of proceedings, the Court may, in like manner aste Commission take the evidence of any witness at any time in the course of the proceedings in any du 2.2 suit or application as preparatory to the hearing of the suit or application, or may direct the Registrar to take such evidence in like manner, and the evidence so taken may be used at the hearing of the suit or application, saving just exceptions.
2. The evidence shall be taken in like manner, as nearly as may be, as evidence at the hearing of a suit, and then the note of the evidence shall be read over to the witness and tendered to him for signature; and if he refuse to sign it the Court or the Registrar, as the case may be, shall add a note of his refusal, and the evidence may be used as if he had signed it.
3. 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 application, can give material evidence respecting the subject of the apprehended suit, but that he is about to leave the jurisdiction, or that from some other cause the person applying will lose the benefit of his evdence if it be not at once taken: Provided always that the Court may upon granting such application impose any terms or conditions with reference to the examination of such witness and the admission of his evidence as to the Court may seein reasonable.
Witness Dead, Insane, or not Appearing.
24-
8. R. 245.
LVII. Where any person who might give evidence in any suit or matter is dead, S. R. 240. or insane, or unavoidably absent at the time his evidence might be taken, or for any reason considered sufficient by the Court caunot appear to give evidence in the suit or matter, the Court may, if it thinks fit, receive proof of any evidence given by him in any former judicial proceeding: Provided that the subject matter of such former judicial proceeding was substantially the same as that of the existing suit, and that the parties to the existing suit were parties to it or bound by it, and in it had cross-examin- ed or had an opportunity of cross-examining the witness of whose evidence proof is so to be given.
Admission of Documents, and Facts; Production and Inspection.
LVIII. Where all parties to a suit are competent to make admissions, any party S. R. 248. may call on any other party by notice filed in the Court and served under order of the Court, to admit any document, or any fact saving just exceptions.
2. In case of refusal or neglect to admit, the costs of proof of the document R. J. C. 14-15.
or fact shall be paid by the party refusing or neglecting, whatever be the result
of the cause, unless the Court is of opinion that the refusal or neglect to admit was
reasonable.
3. No costs of proof of any document or fact shall be allowed unless such notice
has been given, except in cases where the admission to give the notice has, in the opinion of the Court, produced a saving of
expense.
4. The Court may, in its discretion, at any time before hearing on the application
of the parties to the proceeding before the Court, grant an order to the party making the application to inspect all or any documents in the custody or under the control of the oppsite party relating to such proceeding, and if necessary, to take examined copies of the same.
1. C. 107.
J. A. 2 of 1865,
4.21.
His
4.2.5
Ibid -0.26
S. R. 75-80.
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5. Whenever any of the parties to a suit is desirous that any document, writing, or other thing, which he believes to be in the possession or power of another of the parties thereto, should be produced at any hearing of the suit, he shall at the earliest opportunity serve the party in whose possession or power he believes the document, writing, or other thing to be, with a notice in writing calling upon him to produce the
same.
6. A witness, whether a party or not, shall not be bound to produce any document relating to affairs of State, the production of which would be contrary to good policy, nor any document held by him for any other person who would not be bound to pro- duce it if in his own possession.
7. Any person present in Court, whether a party or not, may be called upon and compelled by the Court to give evidence, and produce any document then and there in his actual possession, or in his power, in the same manner and subject to the same rules as if he had been summoned to attend and give evidence, or to produce such document, and may be punished in like manner for any refusal to obey the order of the Court.
8. Any person, whether a party to the suit or not, may be summoned to produce a document without being summoned to give evidence, and any person summoned merely to produce a document, shall be deemed to have complied with the sunmous, if he cause such document to be pro-luced instead of attending personally to produce the same.
CHAPTER IX.
THE HEARING.
Non-attendance of Parties.
LIX. When a cause in the hearing paper has been called on, if neither party attend in person or by counsel, the Court, on being satisfied that the plaintiff has received notice of the hearing, shall, unless it sees good reason to the contrary, striku the cause out of the hearing paper.
2. If the plaintiff does not attend in person or by counsel, the Court, on being satisfied that the plaintiff has received notice of the hearing, shall, unless it sees good reason to the contrary, strike out the cause, and make such order as to costs in favor of any defendant appearing as seems just.
3. If the plaintiff attends, but the defendant or any of the defendants does or do not attend, in person or by counsel, the Court shall, before hearing the cause, inquire into the service of the petition and of notice of hearing on the absent party or parties.
4. If not satisfied as to the service on every party, the Court shall direct that further service be made as it directs, and adjourn the hearing of the cause for that purpose.
5. If satisfied that the defendant or the several defendants has or have been duly served with the petition and with notice of the hearing, the Court may proceed to hear the cause notwithstanding the absence of the defendant or any of the defend- ants, and may on the evidence adduced by the plaintiff, give such judgment as appears just. The Court, however, shall not be absolutely bound to do so, but may order the hearing to stand over to a further day, and direct fresh notice to be given to the defendant or defendants, in case justice seems to require an adjournment.
6. Where the Court hears a cause and gives judgment in the absence of and against any defendant, it may afterwards, if it thinks fit, on such terms as seem just, set aside the decree and re-hear the cause, on its being established by evidence on oath to the satisfaction of the Court that the defendant's absence was not wilful, and that he has a defence the merits.
upon
7. Where a cause is struck out by reason of the absence of the plaintiff, it shall not be restored without leave of the Court, until it has been set down against at the bottom of the general hearing list, and been transferred in its regular turn to the hearing paper. 8. Where a cause has been once struck out, and has been a second time set down, and has come into the hearing paper, and on the day fixed for the hearing, the plaintiff having received due notice thereof, fails to attend either in person or by counsel when the cause is called on, the Court, on the application of the defendant, and if the non-appearance of the plaintiff appears to be wilful and intended to harass the defendant, or to be likely to prejudice the defendant by preventing the hearing and
2