Monday, February 5, 2024

STATEMENT UNDER ORDER 10 OF CPC- LAW & EVIDENTIARY VALUE

 


Statement under Order 10 of CPC- LAW & Evidentiary value

 

The filing of civil suit and procedure are enumerated in details in Code of Civil Procedure which is a comprehensive code in itself. The filing of suit and response by way of a written statement and replication thereto, if perceived necessary are the norms leading to admissions/denial of documents filed relied upon by the respective parties prior to framing of issues. However, the court is empowered to subsequent to filing of suit and upon issuing summons in the suit examine a party to the lis and also, a prospective witness, if that is necessary according to court to shorten the controversy. Even after framing of issue, the statement under Order X Could be sought for either by its own motion by the court or upon filing of application to that effect.

The hon’ble Delhi High Court has dealt with the ambit of the Order 10 of CPC with particular reference to Rule 2 in a matter captioned as DR VIMLA MENON & Anr Vs GOPINATH MENON, bearing no. CM(M) 380/2022 while adjudicating the petition under article 227 of Constitution of India, impugning the order passed by ld Principal District & Sessions Judge,  thereby calling upon the petitioner to personally examine under Order 10 of Code of Civil Procedure.

Another application under Section 165 of the Evidence Act, 1872, and Section 30 and 151 read with Order X, Rule 2 of the CPC, 1908, for recording of the statement of the petitioners under Order X and production of documents on oath was filed. It was alleged, in the said application, that the response of the petitioners, to the interrogatories served by the respondent was evasive and, did not appropriately answer the interrogatories. The respondent had asserted that these documents were essential in order to adjudicate the lis in controversy. Accordingly, it was prayed that the petitioners be examined on oath by the learned Pr DSJ under Order X of the CPC, on the various issues framed in the prayer in the application.

However, in opposition to Order X of the C.P.C. it is stated that it cannot be used as a method to compel a party to, on oath, depose contrary to the averments contained in the affidavit in evidence filed, more so, if response to the interrogatories if served on a party are adequately answered. In case there is no transparency on the part of the answering party, in that event, the consequence envisaged by Order XI Rule 21 CPC would follow.

As stated in Dr Vimla Menon (Supra) the order under Order Rule 10(2) of CPC passed by ld Pr District & Sessions Judge was challenged on the premise that once the interrogatories under Order XI Rule 12 and 14 of CPC was answered and the answer according to petitioner was candid, the only consequence shall follow under Order XI Rule 21 of CPC and there can be no occasion by the trial court to examine the petitioner in person under Order 10 Rule 2 of CPC and elicit something contrary to the affidavit already tendered.

The ld trial court, in order to ascertain the genuineness and veracity of the letters copies of which had been filed by the respondent, with his plaint, had deemed it necessary to examine the petitioners on oath under Section 165 of the Evidence Act read with Order X CPC.

Order X Rule 2 CPC reads thus:

―2. Oral examination of party, or companion of party.—

(1) At the first hearing of the suit, the Court—

(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.

A bare reading of Order X of the CPC makes it abundantly clear that the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is essentially a matter of discretion. Where a court feels that, in order to elucidate matters in controversy in the suit, oral examination of one or more of the parties to the suit is necessary, the court is empowered to so order. The petitioner was accordingly directed to appear in person for his examination under Order X Rule 2 of CPC and the discretion is vested in the courts as per law and that having been exercised can only be challenged if the order is perverse, illegal and leads to material irregularities. The trial court being a courts of facts, under the supervisory jurisdiction of high court under Article 227, the discretion vested in trial court shall not ordinarily be set aside, unless the order, as stated is perverse and leads to injustice.

The Supreme Court has dealt with the issue comprehensively in a matter reported as Kapil Corepacks (P) Ltd. v. Harbans Lal, (2010) 8 SCC 452 and it is held that the very purpose of examination under Order 10 Rule 2 of the Code is to ascertain the dispute  and not to prove the case or disprove the case as set pout by the rival parties. The power is discretionary and the trial court is empowered to exercise that power with a view to elicit the controversy in the suit. The para 11,12 14 and 17 shall be worthy of reference:

11. On the other hand, the examination under Rule 2 of Order 10 of the Code, need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit. Further, under Rule 1 of Order 10, the court can examine only the parties and their advocates, that too at the `first hearing'. On the other hand, Rule 2 enables the court to examine not only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings. The object of oral examination under Rule 2 of Order 10 is to ascertain the matters in controversy in suit, and not to record evidence or to secure admissions. The statement made by a party in an examination under Rule 2 is not under oath, and is not intended to be a substitute for a regular examination under oath under Order 18 of the Code. It is intended to elucidate what is obscure and vague in the pleadings. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. The power under Order 10 Rule 2 of the Code, cannot be converted into a process of selective cross-examination by the court, before the party has an opportunity to put forth his case at the trial.

12. The above position of law is well settled. We need refer only to two decisions in this behalf. In manmohan Das Vs Mt Ramdei & Anr [AIR 1931 PC 175], the Privy Council observed:

"No doubt under Order 10, Rule 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in Order 18."

14. The power of court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code. Nothing however comes in the way of the court combining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2. But the court can only call upon a party to admit any document and cannot cross-examine a party with reference to a document.

17. The object of the examination under Order 10 Rule 2 of the Code is to identify the matters in controversy and not to prove or disprove the matters in controversy, nor to seek admissions, nor to decide the rights or obligations of parties. If the court had merely asked the second appellant whether he had executed the agreement/receipt or not, by showing him the document (by marking the document for purposes of identification only and not as an exhibit), it might have been possible to justify it as examination under Order 10 Rule 2 read with Order 12 Rule 3A of the Code. But any attempt by the Court, to either to prove or disprove a document or to cross-examine a party by adopting the stratagem of covering portions of a document used by cross-examining counsel, are clearly outside the scope of an examination under Order 10 Rule 2 of the Code and the power to call upon a party to admit any document under Order 12 Rule 3A of the Code. What the High Court has done in this case is to `cross-examine' the second appellant and not examine him as contemplated under Order 10 Rule 2 of the Code. We therefore hold that the purported examination under Order 10 Rule 2 of the Code, by confronting a party only with a signature on a disputed and unexhibited document by adopting the process of covering the remaining portions thereof is impermissible, being beyond the scope of an examination under Order 10 Rule 2 of the Code.

We know that if the order of a civil court/district court calling upon a party to be examined under Order 10 Rule 2 of CPC, is challenged, the same shall be under Article 227 of Constitution of India, since appellate remedy is not provided for in this regard. The High Court under the supervisory power shall be empowered to interfere with the trial court order only on account of jurisdictional error or otherwise the order is unlawful and perverse. The periphery of exercising the power under Article 227 of Constitution of India is therefore limited. The Supreme Court has held in (1) Estralla Rubber v Dass Estate (2001) 8 SCC 97 (2) Garment Craft v. Prakash Chand Goel 2022 SCC OnLine SC 29 and (3) Puri Investment v. Young India2022 SCC OnLine SC 283 that high court shall have limited parameter of jurisdiction in this regard. 

Placing reliance on the aforesaid three (3) judgments, in  DR VIMLA MENON (Supra) the Delhi High Court was pleased to dismiss the petition under Article 227 of Constitution of India impugning the order under Order 10 of CPC calling upon the petitioner to be personally present for examination under Order 10 of CPC.

The penumbra and broad parameter of Order 10 of Code of Civil Procedure has therefore been comprehensively examined by the Supreme Court and Delhi High Court in the aforesaid dicta and the proposition in law is clear and does not call for reiteration.

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                                   Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

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