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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