NATIONAL LAW INSTITUTEUNIVERSITY,BHOPAL

SEMESTER -V

PROJECT ON: EXAMINATION OF PARTIES BY THE COURT

SUBMITTED TO: - SUBMITTED BY: -

Mr. AMIT PRATAP SINGH UJJWAL JOSHI

(ASSISTANT PROFESSOR) (2019 B.A. LL.B. 70)

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 TABLE OF CONTENTS
PREFACE........................................................................................................................................4

ACKNOWLEDGEMENT...............................................................................................................5

CERTIFICATE................................................................................................................................6

ABSTRACT....................................................................................................................................7

INTRODUCTION...........................................................................................................................7

STATEMENT OF PROBLEM........................................................................................................8

HYPOTHYSIS................................................................................................................................8

RESEARCH QUESTION...............................................................................................................8

OBJECTIVE OF THE STUDY.......................................................................................................8

RATIONALE BEHIND THE ORDER...........................................................................................9

ORDER X, RULE 1........................................................................................................................9

SETTLEMENT OF DISPUTE OUTSIDE THE COURTS (SECTION 89 OF THE CODE)

w.r.t ALTERNATIVE DISPUTE RESOLUTION....................................................................11

ORDER X, RULE 2, 3..................................................................................................................12

RULE 1 ; RULE 2.....................................................................................................................12

ORDER X, RULE 4......................................................................................................................13

CONCLUSION and SUGGESTION.............................................................................................14

BIBLIOGRAPHY..........................................................................................................................16

CASES REFFERED..................................................................................................................16

2
 WEBSITE REFFERED.............................................................................................................16

REVIEW OF LITERATURE........................................................................................................17

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 PREFACE

I feel great pleasure in presenting the project under study. I hope that the readers will find the
project interesting and that the project in its present from shall be well received by all. The
project contains a detailed study of “Examination of Parties by the Court”.

“Every effort is made to keep the project error free. I would gratefully acknowledge any
suggestions to improve the project to make it more useful.”

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 ACKNOWLEDGEMENT

“The project has been made possible by the unconditional support of many people. I would like
to acknowledge and extend our heartfelt gratitude to Mr. Amit Pratap Singh for guiding us
throughout the development of this paper into a coherent whole by providing helpful insights and
sharing his brilliant expertise. I would also like to thank the officials of the Gyan Mandir, NLIU
for helping me to find the appropriate research material for this study via the online library it has
provided even in the desperate pandemic times.”

“I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.”

UJJWAL JOSHI

2019BALLB70

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 CERTIFICATE

This is to certify that the Project titled – has been prepared and submitted by UJJWAL JOSHI
who is currently pursuing his B.A. LL.B (Hons.) at National Law Institute University Bhopal in
fulfillment of CODE OF CIVIL PROCEDURE course. It is also certified that this is original
research report and this project has not been submitted to any other university, nor published in
any journal.

Date

Signature of the student

Signature of the research supervisor

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 ABSTRACT

The current project deals with the examination of the parties by a court. The presenter had tried

to keep the project direct and crisp, and had tried his best to keep essence of Civil principal in

the project. The project contains the steps as to ascertainment of issues on the examination of

the parties, then to direct the parties to choose on the modes to solve the particular suit, and in

case the process doesn’t work, the suit id referred back to court. It is to be mentioned that the

examination is done under order 10 and cross questioning is done under order 18 of the code.

The project then comes to the process and the people responsible to provide the correct form of

information as to the suit. And at last, the project talks about the party if it fails to produce delay

require information on time. The presenter had tried his best to answer the questions pertaining

to the particular order, i.e order 10.

INTRODUCTION

When a plaint gets presented before the court, the suit gets started. “Pleadings” are constituted by
the plaints and written statements. This helps the court to identify the dispute and thus, frame the
issues. This all happen on the first day of hearing of the suit. The day from when “the court
applies its mind either to apply for the framing of issues or taking evidence” can be said to be the
first day of the suit1.

It is a very important step to ascertain the proposition of fact or law on which the parties are at
disagreement with great precision so as to identify the real dispute between the parties. This is
done keeping in mind that “Every effort ought to be created to expedite the disposal of civil suits

1
Sham Lal v. Atme Nand Jain Sabha, (1987) 1 SCC 222.

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and proceedings, in order that justice might not be delayed”2. Order 10 of the code3 provides for
the rules and hence guides the court to examine the parties. The Presenter of the project tries to
explain the process of examination by the court.

STATEMENT OF PROBLEM

The procedure to examine the statement of the parties on the first day of hearing of a suit is of a
nature in which the court inquires about the material question, and any attempt to cross question
is not permitted under Order 10.

HYPOTHYSIS

The procedure under order 10 is to ascertain issues of a suit and to save time of the court.

RESEARCH QUESTION

1. WHETHER the ascertainment of issues makes it a concrete issue?

2. WHETHER the rules provide flexibility to the parties?

OBJECTIVE OF THE STUDY

1. To understand the peculiarities done on the first day of the hearing.

2. To understand the procedure of examination of a party in a suit.

2
Statement of Object and Reasons of Amendment Act 104 of 1976.
3
Code of Civil procedure, 1908.

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 RATIONALE BEHIND THE ORDER

Order 10 of CPC containes two rules.

1. The Rule 1 provides
 The court that it shall on the very first hearing ascertain from both the parties or their pleader
that the facts, allegations made in the written statement or the plaint by the other party are
accepted or denied by them.
 After recording the denials and admissions, the court shall direct suit to settle outside the
court under Mediation, Concilation, Arbitration, Lok Adalat, Arbitration4.
 The case comes back to the court if the suit remains unsettled.
2. The Rule 2 provides
 That the court must, with all the precision ascertain the proposition of law and fact on which
the parties are at variance,
 In addition to this issues based on such question must be framed5 so that no party is taken by
surprise.

ORDER X, RULE 1

Order X, is based on one of the most important objectives of the Civil Procedure Code, i.e to cut
the irrelevant time in seeking justice. Its main purpose is to confer on the court the power to
examine the parties with a view to ascertain the real points in controversy and thereby shorten
the trial6.

At the first hearing of the suit, the court has the power to ascertain from both the parties and
their pleaders if they denies or admits the allegations of facts made in the written statement or the
plaint by the opposite party. The court shall keep a record of such denials and admissions. The
court should make an effort to remove any ambiguity therein and to ascertain the differences in

4
Order 10, R- 1A to 1C.
5
ManmohanDas v. Ramdei, AIR 1931 PC 175.
6
Ram Kishan v. Ram Janaki, AIR 1952 All 355.

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the points, and also how far the parties are prepared to admit each other’s case7. This all happens
on the “first date of hearing”. The “first date of hearing” is the date from when the court apply its
mind to determine the points in dispute and to frame the issues. The first hearing of the suit can
never happen before the date fixed for settlement of suits and preliminary examinations of the
parties.

According to rule (1A), after recording the admissions and denials under Rule -1, the “court
shall direct the parties to choose one of the modes of settlement of dispute outside the court” as
written under section 89 (1)8. Now, the section 89 (1) of the code makes it an obligation upon the
court to have the matter refer for the settlement under any one of the way, i.e, conciliation,
arbitration, judicial settlement through Mediation or Lok Adalat. Laws relating to arbitration
have been consolidated under Arbitration and Conciliation Act 1996. The court shall order the
concerned parties to choose a mode of settlement outside the court ans given under section 89 (1)
of the code. When the parties are confident with the option, the court shall then fix the date of
appearance before such an authority or forum as chosen by the parties. Therefore, the rule 1-A of
Order X of the Code gives the court an authority to give the parties an option to choose any
Alternative Dispute Resolution processes.9

Under the rule (1-B) of Order X, the parties after getting a required conciliatory forum shall
appear before it for the conciliation of the suit. The Board of conciliators consists of senior
lawyers, retired judicial officers of known competence and integrity and the presiding officer of
the principal civil court would constitute the board, after consultation with the senior colleagues.

Under the rule (1-C) of Order X, after the suit is referred to the board of conciliators to go
within the suit and find out whether there existed elements of settlement that are acceptable to
the parties and if any element is identified, the suit then gets referred to Alternative Dispute
Resolution. Method of conciliation could also be tried by the board itself if found attainable. If
the parties in the suit fail to get their disputes settled under any alternative dispute resolution
method, the suit is referred back to the court and the parties must appear on the date as decided
by the court.

7
Annie v. Babal, AIR 1976 Goa 39.
8
The Code of Civil Procedure, 1908.
9
Afcons Infrastructures Ltd v Cherian Markey Construction Co (P) Ltd, (2010) 8 SCC 24 (40).

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SETTLEMENT OF DISPUTE OUTSIDE THE COURTS (SECTION 89 OF
THE CODE) w.r.t ALTERNATIVE DISPUTE RESOLUTION

The legislative intention behind enacting section 89 was that where it might appear to the court
that there exist any elements of settlement which might be accepted by the parties, then the
parties, at the instance of the court, shall apply their mind so as to opt for one of the Alternative
Dispute Methods mentioned in the section. If the parties do not agree to choose than the court
might refer them to one of the said modes.

Section 8910 uses both the words “may and shall”, on the other hand, Order X, (1A), uses the
word “shall”, but on a harmonious reading of both the provisions it becomes clear that the word
“may” under sec 89 governs the aspect of re-formulation of a possible settlement and its
reference to one of the ADR methods. Therefore, there is no conflict.

With respect to the situation where the parties have to choose among various ADR methods,
nothing is mentioned under the Arbitration and conciliation act 1996. Section 89 of the code also
does not have anything written on this, therefore the court directed to have this drafted under the
Order 10 of the code. In addition to this the Kerala High court had also held that “compulsory
reference to arbitration against volition and without consent of parties in permissible, even
though rr 1-A to 1-C do not speak about the same. If the substantive provision in the Code
confers a power in the Courts to make a reference, it would be improper and impermissible to
argue against such provision in the statute with the help of the rules framed or not framed11”

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Settlement of disputes outisde the Court.--(1) Where it appears to the Court that there exist elements of a
settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to
the parties for their observations and after receiving the observations of the parties, the Court may reformulate the
terms of a possible settlement and refer the same for:--
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat: or
(d) mediation.
11
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P.) Ltd., Kochi, 2007 (1) Ker LT 196.

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 ORDER X, RULE 2, 3

The rule empowers the court to examine any party or the pleader of the party who knows the
answer to entire material question the court has related to the suit in the first or the subsequent
hearing.

Clause 1(a) of the rule talks about the first hearing and makes it mandatory for such parties (the
party to the suit) to appear before the court.

Clause 1(b) of the rules talks about the person accompanying the party and his ability of
understanding and answering the entire material question that the court has. However, this
examination is optional.

Clause 2 of the rule talks about the subsequent hearing and the examination thereunder is
optional.

Clause 3 talks about that everything recorded by the trial court must be reduced to writing by the
judge and must form a part of the record. In appeal, the Appellate Court must accept the
correctness of the statement recorded by the trial court unless there is proof of an error.12

RULE 1 ; RULE 2

Rule 1 pertains to allegations made in lawsuits, but rule 2 has no such restriction. Any substantial
issue may be the subject of the examination. Then, rule 1 provides for the examination of the
party or his pleader, while rule 2 enables for the questioning of everyone who is accompanying
the party or his pleader. Finally, the pleader's or party's declaration under Rule 1 is decisive
against the party, although the companion's testimony under Rule 2 is not decisive against the
party.

Rule 2 has been amended to require the Court to interrogate the party presenting in person or
present in Court in order to clarify the issues in dispute.

12
Jagarnath v. Mohd Yusuf, AIR 1965 All 266.

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The object of examination that the rule lays is not to ascertain as to what is evidence under the
fact or to take any evidence, it is but to determine the matter in dispute between the parties.13 In a
certain case, the court made the defendant come to the witness box and then the opposite party
began to cross examine him. The Privy Council was against the process and said that the practice
of examination under Order 10 only pertains to ascertaining the fact, and a practice under Order
18 should be used by the judge in most unique cases.14 The reason given was that “statement
made by the 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 O XVIII of the Code. The power under
rule 2 of O X of the Code cannot be converted into a process of selective cross examination b&
the court before the party has an opportunity to put forth his case at the trial”.15

Main purpose for which the order 10 is used is to bring clarity on the “material question of fact”
so as to frame the correct issues and apply the relevant law. Barring exceptional circumstances,
no suit once proceeded to order 1816 be allowed to go back to framing of issues. Although, the
same is not totally prohibited by the law. However, if the trial court feels that it has certain
important reason to go back the procedure, then it has to submit the reasons as to what impelled
it to go back.

However, if the trial Court, even after framing of issues still wants to go back to the procedure
contemplated under O 10, r 2, then it should record its reasons as to what impelled it to go back
to O 10. Thus, where the Court, after framing of issues, proceeded to examine the parties under
O 10, r 2 by a non-speaking order, it was held that the order was liable to be set aside.17

ORDER X, RULE 4

Clause 4 enables the court that if the court is of the opinion that the pleader of the party is not an
abled person to give answer to the entire material question then it can ask the party to come and
make the court understand the question. The court must give a date to the party in the coming

13
Gunga v. Tiluckram, (1888) 15 Cal 533.
14
Manmohan v. Ramdei, AIR 1931 PC 175.
15
Kapil Corepacks Pvt Ltd v Harbans Lal, AIR 2010 SC 2809.
16
Hearing of the suit and examination of witnesses.
17
Baleshwar Singh v. Smt. Shanti Kumari, AIR 2008 Pat 13.

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seven days from this date. If the party fails to appear before the court within the date assigned or
before 7 days from the first hearing, then the court has the power to pronounce a judgment
against the that party.

Under this rule, an order directing a party to appear in person can only be made if the pleader
who represents him has refused or is unable to answer material questions.18 In a case, where the
husband after being asked by the court to answer the material question failed to appear before the
court, the supreme court held that that O 10 is an enabling provision and it does not in any
manner place a bar on the powers of the court to seek clarification so as to advance the interest of
justice.19 A dismissal of a suit under sub-r (2) operates as res judicata so as to bar a subsequent
suit in respect of the same matter.20

CONCLUSION and SUGGESTION

Hence, the hypothesis stands corrected. The main purpose of the said rule is to understand and
make note of the main issues involved in a suit. The said rule was made in accordance with the
general principal of the civil law, i.e, to save time and to deliver justice. The order 10 used for
ascertainment of the issues does make the issue as a concrete one, but it solely depends upon the
court that if it feels right that the steps should be repeated the court must submit the reason as to
why it is repeating the process and thereon repeat the process. The court also directs the parties
to choose one of the methods to solve its issues, for this thing, a different subordinate team
should be appointed as to save the time of the court and let them work efficiently in order to
clear the backlogs. It is also to be mentioned that the method of court to take in consideration the
party and in some cases where the parties are not available, to take into consideration the
pleaders of the party is quite commendable for the parties which are currently out of the Indian
territory, but at the same time the process is a bit tedious as it increase the already increased
backlogs. The rule is also very flexible for the party as it waits for the next seven days if the
party fails to appear on the first hearing. All in all the presenter is very must satisfied with the
nature of order 10.

18
Satu v. Hanmantrao, (1899) 23 Bom 318.
19
Vikas Aggarwal v. Anubha, AIR 2002 SC 1796.
20
Punamchand v. Molison (1911) 13 Bom LR 658.

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 BIBLIOGRAPHY

CASES REFFERED
Sham Lal v. Atme Nand Jain Sabha, (1987) 1 SCC 222.

Statement of Object and Reasons of Amendment Act 104 of 1976.

ManmohanDas v. Ramdei, AIR 1931 PC 175.

Ram Kishan v. Ram Janaki, AIR 1952 All 355.

Annie v. Babal, AIR 1976 Goa 39.

Afcons Infrastructures Ltd v Cherian Markey Construction Co (P) Ltd, (2010) 8 SCC 24 (40).

Jagarnath v. Mohd Yusuf, AIR 1965 All 266.

Gunga v. Tiluckram, (1888) 15 Cal 533.

Manmohan v. Ramdei, AIR 1931 PC 175.

Kapil Corepacks Pvt Ltd v Harbans Lal, AIR 2010 SC 2809.

Hearing of the suit and examination of witnesses.

Baleshwar Singh v. Smt. Shanti Kumari, AIR 2008 Pat 13.

Satu v. Hanmantrao, (1899) 23 Bom 318.

WEBSITE REFFERED

https://districts.ecourts.gov.in

https://taxguru.in

https://main.sci.gov.in

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 REVIEW OF LITERATURE

1. Mulla, (2017) The Code of Civil Procedure, 19th ed., Gurugram, Lexis Nexis.

The book is a very comprehensive one. It helped me to understand the intricacies of order 10 of
CPC. The book taught me the history and the scope of the act. The book also supplied with
various judgments to support the arguments that I made in the project. The book clearly gave the
much needed difference in the sub-clauses of the 1st clause, and also it gave a detailed
explanation on the process that accompanies with the examination.

2. MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th edition,
Lexis Nexis.

The book provides with a very deep reading of order 10 of the code. My main focus while
reading the book was to understand the clause 2 of the order. The book gave a detailed difference
between the sub-clauses of the act. The book helped me understand the clause 4 of the order.

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