Introduction

Section 138 of the Code of Civil Procedure, 1908 deals with the power of the High Court to require evidence to be recorded in English.

Contents

Introduction
Section at a Glance

The provision gives the High Court authority to direct, through a notification in the Official Gazette, that specified Judges, or Judges falling within a specified category, must record evidence in English in cases where an appeal is allowed.

It also provides a procedure for situations where a Judge is prevented by sufficient reason from personally complying with such a direction.

Section at a Glance

Particular	Details
Section	Section 138 CPC
Subject	Power of High Court to require evidence to be recorded in English
Authority	High Court
Method	Notification in the Official Gazette
Persons covered	Specified Judges or Judges falling within a specified description
Cases covered	Cases in which an appeal is allowed
Language	English
Important exception	Judge prevented by sufficient reason
Alternative procedure	Evidence may be taken down in writing from the Judge’s dictation in open Court

Statutory Provision

Section 138 CPC provides:

“Power of High Court to require evidence to be recorded in English.—(1) The High Court may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.”

Meaning of Section 138 CPC

In simple words:

Section 138 allows a High Court to require specified subordinate Judges to record evidence in English in appealable cases.

The power is not automatic.

The High Court must exercise it through a notification in the Official Gazette.

The direction may apply:

To a particular Judge; or
To a class or category of Judges described in the notification.

Purpose and Object of Section 138

The main purpose of Section 138 is to facilitate the proper recording and preservation of evidence in cases where an appeal may be filed.

Recording evidence in English can provide uniformity and facilitate examination of the trial record at the appellate level.

The provision therefore aims to:

Maintain consistency in the recording of evidence.
Facilitate appellate examination of the evidence.
Enable the High Court to prescribe English as the language for recording evidence in specified cases.
Provide a mechanism where the concerned Judge cannot personally comply with the direction.

Who Can Exercise the Power?

The power under Section 138 belongs to the High Court.

A subordinate Court does not independently decide under Section 138 that evidence must be recorded in English.

The High Court exercises the power by issuing a notification in the Official Gazette.

Therefore:

High Court → Notification → Specified Judge/Category of Judges → Evidence recorded in English

Notification in the Official Gazette

The High Court must exercise the power through a notification published in the Official Gazette.

This is an important procedural requirement.

The notification may identify:

A particular Judge

For example, the notification may specifically identify a particular Judge.

A category of Judges

The notification may instead describe a category of Judges to whom the direction applies.

Therefore, the provision provides flexibility to the High Court.

Cases Covered Under Section 138

The direction concerns:

Cases in which an appeal is allowed.

Therefore, Section 138 is specifically connected with appealable cases.

The provision is not framed as a general requirement that evidence in every civil proceeding must always be recorded in English.

The High Court’s direction determines the cases and Judges to which the requirement applies.

What Does “Evidence to Be Recorded in English” Mean?

Where a direction under Section 138 applies, the evidence is to be taken down in the English language and in the manner prescribed.

The requirement concerns the recording of evidence.

It does not mean that every witness must necessarily speak English.

A witness may give evidence in another language where permitted, with appropriate interpretation, but the evidence is to be recorded in English where the Section 138 direction applies.

Thus:

Language spoken by witness ≠ necessarily language in which evidence is recorded.

This distinction is important.

Role of the Judge

Under Section 138(1), the evidence is to be taken down by the Judge in English and in the prescribed manner.

The Judge therefore has an active role in ensuring compliance with the High Court’s direction.

The provision is concerned not merely with the language but also with the manner prescribed for recording the evidence.

What Happens If the Judge Cannot Comply?

Section 138(2) provides a specific solution.

If a Judge is prevented by a sufficient reason from complying with the direction under Section 138(1):

The Judge must record the reason.
The Judge must cause the evidence to be taken down in writing.
The evidence is taken down from the Judge’s dictation in open Court.

Therefore, inability to personally comply does not mean that the evidence can simply be left unrecorded.

Importance of “Sufficient Reason”

The expression “sufficient reason” is important.

The Judge cannot simply disregard the High Court’s direction.

There must be a sufficient reason preventing compliance.

Where such a reason exists, the Judge must record the reason and follow the alternative procedure prescribed by Section 138(2).

Procedure Under Section 138

The operation of Section 138 can be understood step by step.

Step 1 – High Court Issues Notification

The High Court publishes a notification in the Official Gazette.

Step 2 – Judge or Category Is Identified

The notification identifies a particular Judge or a category of Judges.

Step 3 – Appealable Cases Are Covered

The direction applies to cases in which an appeal is allowed.

Step 4 – Evidence Is Recorded in English

The concerned Judge records the evidence in English and in the prescribed manner.

Step 5 – If Judge Cannot Comply

If sufficient reason prevents compliance, the Judge records the reason.

Step 6 – Evidence Is Taken Down From Dictation

The evidence is then taken down in writing from the Judge’s dictation in open Court.

Section 138 and Section 137 CPC

Section 137 and Section 138 are closely connected because both concern the language used in subordinate civil Courts.

Basis	Section 137	Section 138
Subject	Language of subordinate Courts	Power to require evidence in English
Authority	State Government has a role in prescribing Court language	High Court
Main concern	General language of subordinate Courts	Language of evidence in specified cases
English requirement	Depends on applicable rules	May be specifically directed by High Court
Method	State prescription under statutory framework	High Court notification
Special focus	Court language	Evidence in appealable cases

Easy distinction:

Section 137 = What is the language of the subordinate Court?

Section 138 = When can the High Court require evidence to be recorded in English?

Section 138 and Evidence

Section 138 specifically concerns the recording of evidence.

This should be distinguished from other procedural documents such as:

Plaint;
Written statement;
Applications;
Affidavits;
Orders;
Judgments.

The Section is specifically concerned with evidence and the manner in which it is taken down.

Section 138 and Appeals

The connection with appeals is significant.

The provision applies to:

Cases in which an appeal is allowed.

The purpose is to make the evidence part of the trial record in a form that can facilitate examination by the appellate Court.

Thus, Section 138 has an important relationship with the appellate structure of civil litigation.

Practical Example

Suppose a High Court issues a notification directing that evidence in appealable civil cases before a specified category of Judges must be recorded in English.

A Judge covered by the notification conducts a civil trial.

The case is one in which an appeal is allowed.

The Judge must therefore take down the evidence in English and in the prescribed manner.

Example Where Judge Cannot Personally Comply

Suppose the Judge is unable to comply with the Section 138 direction because of a sufficient reason.

The Judge must:

Record the reason for the inability.
Cause the evidence to be taken down in writing.
Dictate the evidence in open Court.

The alternative procedure therefore preserves the requirement that the evidence be properly recorded.

Important Features of Section 138

1. High Court has the power

The power belongs to the High Court.

2. Notification is required

The direction must be issued through a notification in the Official Gazette.

3. Specific Judges may be identified

The notification may concern a particular Judge.

4. A category of Judges may be identified

The notification may also cover Judges falling under a specified description.

5. Appealability is important

The direction concerns cases in which an appeal is allowed.

6. Evidence is recorded in English

Where the direction applies, evidence must be taken down in English and in the prescribed manner.

7. There is a safeguard for sufficient reasons

If the Judge cannot comply, the Judge must record the reason and have the evidence taken down from dictation in open Court.

Section 138 Does Not Mean Every Civil Case Must Be Recorded in English

This is a very important point.

Section 138 does not establish a universal rule that evidence in every civil case throughout India must be recorded in English.

Instead, it gives the High Court a power to issue a specific direction.

The application depends upon:

The relevant High Court;
The notification issued;
The Judge or category of Judges covered;
The cases covered by the notification;
The applicable State amendments, if any.

State Amendments

Section 138 has been subject to amendments in certain States.

For example, special versions of Section 138 have applied in Assam, Nagaland, Meghalaya, Tripura and Manipur.

Therefore, when dealing with a specific case, it is important to check whether a State amendment modifies the ordinary text or operation of Section 138.

For examination purposes, however, the central principle remains:

The High Court may direct specified Judges to record evidence in English in appealable cases.

Section 138 and Local Court Language

The existence of a local language as the language of a subordinate Court does not prevent the High Court from exercising its statutory power under Section 138 where the applicable direction requires evidence to be recorded in English.

Thus, the two provisions operate differently:

Section 137 → General framework concerning the language of subordinate Courts.

Section 138 → Specific High Court power concerning recording of evidence in English.

Common Confusions About Section 138

1. Section 138 does not automatically require English everywhere

A High Court direction is required.

2. The State Government does not exercise the Section 138 power

The specific power under Section 138 belongs to the High Court.

3. It applies to evidence

It is not a general provision requiring every Court document to be written in English.

4. Appealability matters

The provision refers to cases in which an appeal is allowed.

5. The Judge cannot simply ignore the notification

Where sufficient reason prevents compliance, the Judge must record the reason and follow the alternative procedure.

Practical Importance in Civil Litigation

Section 138 may become relevant when:

Evidence is being recorded before a subordinate Court;
The High Court has issued a notification under Section 138;
The case is appealable;
The language of evidence becomes relevant to the appellate record;
A Judge is unable to personally record the evidence in the prescribed manner.

An advocate should therefore determine whether a Section 138 notification applies to the particular Court and Judge.

Importance for Law Students and Judiciary Exams

Section 138 is frequently tested through questions concerning the authority, notification, appealable cases and alternative procedure.

What to Remember

Section 138 deals with the power of the High Court to require evidence to be recorded in English.
The High Court exercises this power through a notification in the Official Gazette.
The notification may identify a particular Judge.
It may also identify a category of Judges.
The provision concerns cases in which an appeal is allowed.
Evidence must be taken down in English and in the prescribed manner when the direction applies.
If sufficient reason prevents the Judge from complying, the Judge must record the reason.
The evidence is then taken down in writing from the Judge’s dictation in open Court.
Section 138 does not automatically make English the language of evidence in every civil case.

Important Questions to Prepare

What is the object of Section 138 CPC?
Who has the power under Section 138 to require evidence to be recorded in English?
How must the High Court exercise the power under Section 138?
What is the significance of the Official Gazette notification?
To what Judges can a Section 138 direction apply?
What types of cases are covered by Section 138?
What happens if a Judge is prevented by sufficient reason from complying with the direction?
Distinguish Section 137 from Section 138 CPC.
Does Section 138 require evidence to be recorded in English in every civil case?

Key Legal Principles

1. High Court controls the direction

The power to require evidence to be recorded in English belongs to the High Court.

2. Notification is essential

The direction is issued through notification in the Official Gazette.

3. The direction may be specific or general within its description

It may apply to a particular Judge or to Judges falling within a specified category.

4. Appealable cases are covered

The Section specifically refers to cases in which an appeal is allowed.

5. Sufficient reason provides an alternative procedure

Where the Judge cannot comply, the Judge must record the reason and cause the evidence to be taken down from dictation in open Court.

6. Section 138 is not a universal English-language rule

Its application depends upon the High Court’s notification and the applicable legal framework.

Key Takeaways

Concept	Principle
Section	Section 138 CPC
Core subject	Power of High Court to require evidence to be recorded in English
Authority	High Court
Method	Notification in the Official Gazette
Persons covered	Specified Judge or category of Judges
Cases	Cases in which an appeal is allowed
Language	English
If Judge cannot comply	Reason must be recorded
Alternative	Evidence taken down from Judge’s dictation in open Court
Related section	Section 137 CPC

ALSO READ: Section 137 – Language of Subordinate Courts

Conclusion

Section 138 CPC gives the High Court the power to require evidence to be recorded in English in appealable cases before specified Judges or categories of Judges. The power must be exercised through a notification in the Official Gazette.

The provision also recognises that circumstances may prevent a Judge from personally complying with the direction. In such a situation, the Judge must record the sufficient reason and cause the evidence to be taken down in writing from the Judge’s dictation in open Court.

Easy Formula to Remember

Section 138 = High Court + Official Gazette Notification + Specified Judge + Appealable Case + Evidence in English + Sufficient Reason → Dictation in Open Court.

Join Lexibal’s WhatsApp Community for latest updates.

Author

Section 138 CPC – Power of High Court to Require Evidence to Be Recorded in English