ORDER 35

PROCEEDINGS AT TRIAL

Failure to appear by both parties or one of them (O. 35, r. 1)
1. —(1) If, when the trial of an action is called on, neither party appears, the Judge may dismiss the action or make any other order as he thinks fit.

(2) If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or may without trial give judgment or dismiss the action, or make any other order as he thinks fit.

Judgment, etc., given in absence of party may be set aside (O. 35, r. 2)
2. —(1) Any judgment or order made under Rule 1 may be set aside by the Court on the application of any party on such terms as the Court thinks just.

(2) An application under this Rule must be made within 14 days after the date of the judgment or order.

Adjournment of trial (O. 35, r. 3)
3. The Judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and upon such terms, if any, as he thinks fit.

Order of speeches (O. 35, r. 4)
4. —(1) The Judge before whom an action is tried may give directions as to the party to begin and the order of speeches at the trial and, subject to any such directions, the party to begin and the order of speeches shall be that provided by this Rule.

(2) Subject to paragraph (6), the plaintiff shall begin by opening his case.

(3) If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case.

(4) If the defendant elects to adduce evidence, he may, after any evidence on behalf of the plaintiff has been given, open his case and, after the evidence on his behalf has been given, make a second speech closing his case, and at the close of the defendant's case the plaintiff may make a speech in reply.

(5) Where there are 2 or more defendants who appear separately or are separately represented, then —

(a) if none of them elects to adduce evidence, each of them shall state his case in the order in which his name appears on the record;

(b) if each of them elects to adduce evidence, each of them may open his case and the evidence on behalf of each of them shall be given in the order aforesaid and the speech of each of them closing his case shall be made in that order after the evidence on behalf of all the defendants has been given;

(c) if some of them elect to adduce evidence and some do not, those who do not shall state their cases in the order aforesaid after the speech of the plaintiff in reply to the other defendants.

(6) Where the burden of proof of all the issues in the action lies on the defendant or, where there are 2 or more defendants and they appear separately or are separately represented, on one of the defendants, the defendant or that defendant, as the case may be, shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between, him and the plaintiff as if for references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively.

(7) Where, as between the plaintiff and any defendant, the party who would, but for this paragraph, be entitled to make the final speech raises any fresh point of law in that speech or cites in that speech any authority not previously cited, the opposite party may make a further speech in reply, but only in relation to that point of law or that authority, as the case may be.

Inspection by Judge (O. 35, r. 5)
5. The Judge by whom any cause or matter is tried may inspect any place or thing with respect to which any question arises in the cause or matter. All such expenses shall be costs in the proceedings.

Death of party before giving of judgment (O. 35, r. 6)
6. Where a party to any action dies after the finding of the issues of fact and before judgment is given, judgment may be given notwithstanding the death, but the foregoing provision shall not be taken as affecting the power of the Judge to make an order under Order 15, Rule 7 (2), before giving judgment.

Records to be made by Registrar or proper officer of the Court (O. 35, r. 7)
S 637/2006, wef 01/01/2007
7. —(1) The Registrar or the proper officer of the Court must record the time at which the trial commences and terminates, and the time actually occupied on each day on which the trial takes place.
S 637/2006, wef 01/01/2007

(2) At the conclusion of the trial of any action, the Registrar or the said officer must record the judgment given by the Judge, and any order made by the Judge as to costs.
S 637/2006, wef 01/01/2007

(3) The certificate of the Registrar or the said officer in Form 65 shall be sufficient authority for the proper officer in the Registry to enter judgment accordingly.

List of exhibits (O. 35, r. 8)
8. —(1) The Registrar or the proper officer of the Court shall take charge of every document or object put in as an exhibit during the trial of any action and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in or the witness by whom it is proved, and with a number, so that all the exhibits put in by a party, or proved by a witness, are numbered in one consecutive series.

In this paragraph, a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit is put in.

(2) The Registrar or the said officer shall cause a list in Form 66 to be made of all the exhibits in the action, and any party may, on payment of the prescribed fee, have an office copy of that list.

(3) The list of exhibits when completed shall be attached to the pleadings and shall form part of the record of the action.

(4) For the purpose of this Rule a bundle of documents may be treated and counted as one exhibit.

Custody of exhibit after trial (O. 35, r. 9)
9. —(1) The Registrar shall retain all exhibits in his custody duly marked or labelled so that in the event of an appeal to the High Court or the Court of Appeal, he may be able to produce the exhibits so marked or labelled at the hearing of the appeal.

(2) After the expiration of the time for appealing and if no appeal has been brought, or after the final disposal of the appeal, as the case may be, the exhibits shall be returned on request of the respective parties who put them in:

Provided that where the claim or counterclaim is for money due under a negotiable instrument which is received in evidence, the negotiable instrument must be retained in the Registry and must not be delivered out of the custody of the Registry except upon an order of the Registrar.

Impounded documents (O. 35, r. 10)
10. —(1) Documents impounded by order of the Court shall not be delivered out of the custody of the Court except in compliance with an order made by a Judge on an application:

Provided that where the Attorney-General makes a written request in that behalf, documents so impounded shall be delivered into his custody.

(2) Documents impounded by order of the Court, while in the custody of the Court, shall not be inspected except by a person authorised to do so by an order signed by a Judge.

Continuation of hearing by another Judge (O. 35, r. 11)
11. —(1) When a Judge who has commenced the hearing of a cause or matter is unable through death, illness or other cause to conclude the hearing or trial, the Chief Justice or the Senior District Judge, as the case may be, may nominate another Judge to continue the hearing.

(2) Nothing herein shall prevent the Judge so nominated from recalling all or any of the witnesses or taking their evidence afresh.