Skip to content


Bhanwarlal Kavad and ors. Vs. Shyamsunder and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 460 of 1982
Judge
Reported inAIR1984Raj113; 1983()WLN307
ActsCode of Civil Procedure (CPC) , 1908 - Order 10, Rules 1, 2, 2(1) and 2(2) - Order 14, Rule 1(5); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantBhanwarlal Kavad and ors.
RespondentShyamsunder and ors.
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate A.L. Chopra, Adv.
DispositionRevision petition allowed
Excerpt:
.....the stage when issues are required to be framed.;the court should resort to the examination of the parties under rule 2, particularly on the documents, which are said to be signed by the parties. it is true that the pleader of the party is empowered to admit and deny the documents, but it is better that the original documents are put to the party and admission or denial is obtained after visual observations by the party himself of the original documents.;revision allowed - - are intended to focus the attention of the court as well as of the parties to the real controversies between them by examination conducted under these rules. it is true that the pleader of the party is empowered to admit and deny the documents, but it is better that the original documents are put to the party and..........more lucid and clear by examination of the party or his pleader. prior to the substitution of rule 2. examination of the party was not obligatory, but in clause (a) sub-rule (a) of rule 2 of order 10, the word 'shall' has been introduced, which makes the intention abundantly clear. by the use of the expression 'shall,' it has been made obligatory for the court to examine the party appearing in person or present in court with a view to elucidating matters in controversy in the suit, as it deems fit. the provisions of order 10. rules j and 2. c. p. c.. if are freely and generally pressed into service by the courts, for imparting quick and speedy justice these provisions have certainly a role to play. the general use of these provisions, to my mind, would shorten the litigation. most.....
Judgment:
ORDER

M.C. Jain, J.

1. This revision is directed against the order dated 28-8-1982 whereby the defendant-petitioners' applications under Order 10. Rs. 1 and 2, C. R C. dated 2-12-1981 and 10-5-1982, were rejected.

2. The plaintiff-non-petitioners Nos. 1 and 2 instituted a suit for rendition of accounts against the present petitioners and two other defendants. Defendant No. 1 Bhanwarlal filed his written statement on 8-5-1981. Thereafter written statements were filed by the other defendants. On 10-7-1981, the plaintiffs moved an application for permission to file additional written statement under Order 8, Rule 9, C. P. C. This application of the plaintiffs has not so far been disposed of. On 11-8-1981 the defendant Bhanwarlal moved an application for admission and denial of the original notice said to be signed by the plaintiff Shyamsunder, as a plea has been taken by him in his written statement that the plaintiffs' suit is barred by time. A further application to the same effect was presented by the defendant Bhanwarlal on 2-12-1981 and on that very day he moved an application under Order 10. Rules. 1 and 2. C.P.C.. for recording the statements of the parties, namely, the plaintiffs and the defendant No. 1. A further application was submitted by him under the same provisions on 10-5-1982, in which he prayed that the statement of Shyamsunder may first be recorded and thereafter the applications of the parties may be heard and decided.

3. It may be stated here that the original notice submitted by defendant No. 1 was denied by the plaintiffs' counsel on 17-4-1982, although the plaintiff Shyamsunder was present on that date. It may also be stated that the defendant No. 1 also moved an application under Order 14. Rule 2. C.P.C. for hearing and deciding the issue of limitation. It was stated in the application dated 10-5-1982 that the notice was denied by the plaintiffs counsel only with a view that the application under Order 14. Rule 2, C.P.C.. presented by the defendant may not be allowed. The learned Additional District Judge no. 1. Jodhpur, after hearing the learned counsel for the parties, rejected both the applications, presented Under Order 10. Rules. 1 and 2 C. P. C.

4. At the outset it may be stated that the examination of the party or his pleader or any companion of the party Under Order 10. Rules. 1 and 2. C.P.C.. can be made at the first hearing of the suit and not before. The expression 'at the first hearing of the suit' would mean at the stage when issues are required to be framed. Admittedly that stage has not come in the present case. The question of oral examination of the party or his pleader or the companion of the party Under Order 10, would arise only when the entire pleadings of the parties come on record. In the present case the plaintiffs' application Under Order 8. Rule 9. C.P.C.. for filing additional written statement, is still pending consideration of the Court. In case the plaintiffs are permitted to file the additional written statement or rejoinder, then that would equally be a pleading from the side of the plaintiffs and in connection with the framing of the issues, that pleading would also be relevant.

5. But the question is whether the trial court has examined the provisions of Order 10 Rule 2, C.P.C. in its correct perspective. It would be proper to examine the change in law, which has taken place by the C.P.C, (Amendment) Act, 1976. Rule 2 of Order 10 has been completely substituted and besides that Order 14. Rule 1 Sub-rule (5) has also been amended. For facility of reference, it would be proper that the provisions of Order 10. Rules 1 and 2 and Sub-rule (5) of Rules 1 of Order 14. C.P.C.. may be reproduced. They read as under:--

'Order. 10--

Rule 1. Ascertaiment whether allegations in pleadings are admitted or denied.

At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.'

'2. Oral examination of party, or companion of party.

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

(a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and

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

(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.

(3) The Court may. if it thinks fit, put in the course of an examination under this rule questions suggested by either party.'

Order. 14--

Rule 1 -- Framing of issues.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order 10 and after hearing the parties or their pleaders ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.'

6. The provisions of Order 16, Rules. 1 2, C. P. C., have a wholesome purpose behind them. The importance of oral examination of party or his pleader or the companion of party at the time of framing of the issues, has to be emphasised for the trial courts. The provisions contained in Order 10, Rules l and 2. C.P.C. are intended to focus the attention of the court as well as of the parties to the real controversies between them by examination conducted under these rules. The real controversies between the parties on such examination would come to surface and the parties would be in a position to know as to what case they are required to prove or meet. It is common experience that the pleadings generally remain obscure and vague. In order to remove that obscurity and vagueness and equivocal character or nature of pleadings, courts have been empowered under Rules. 1 and 2 of Order 10. C. P, C.. to ascertain facts and to make the pleadings more lucid and clear by examination of the party or his pleader. Prior to the substitution of Rule 2. examination of the party was not obligatory, but in Clause (a) Sub-rule (a) of Rule 2 of Order 10, the word 'shall' has been introduced, which makes the intention abundantly clear. By the use of the expression 'shall,' it has been made obligatory for the court to examine the party appearing in person or present in court with a view to elucidating matters in controversy in the suit, as it deems fit. The provisions of Order 10. Rules J and 2. C. P. C.. if are freely and generally pressed into service by the courts, for imparting quick and speedy justice these provisions have certainly a role to play. The general use of these provisions, to my mind, would shorten the litigation. Most of the controversies, which may be there in the pleadings, would not remain on examination of the parties and this is how the controversies between the parties would be narrowed down. By resorting to examination Under Rules 1 and 2 of Order 10, C.P.C. the court can clarify the pleading putting material questions relating to the suit to the parties. Clause (a) of Sub-rule (l) of Rule 2 of Order 10, is imperative for the court to examine the parties, if they appear in person or present in court, if it deems fit, for elucidating matters in controversy. Even if they are not appearing in person or are not present in court, if the court feels necessity of getting some elucidation in relation to matters in controversy in the suit, it can direct them to appear in person. Sub-rule (5) of Rule 1 of Order 14. C. P. C. also envisages that issues should be framed not only on the pleadings of the parties, but after examination of the parties under Rule 2 of Order 10. It is true that under Rule 1 of Order 10. facts can even be ascertained by the court from the pleader of the party and even from the party, but, Rule 2 empowers the court to examine the party for the purpose of elucidating matters in controversy in the suit, if he appears in person or present in court and the companion of the party may be examined under Clause (b) of Sub-rule (1) of Rule 2. Sub-rule (2) of Rule 2 further empowers the court to examine the party or his companion at any subsequent hearing. The examination can be made by the court on the questions, which may be suggested by the parties, apart from the examination, which may be conducted by the court on its own motion. In my opinion, the court should resort to the examination of the parties under Rule 2, particularly on the documents, which are said to be signed by the parties. It is true that the pleader of the party is empowered to admit and deny the documents, but it is better that the original documents are put to the party and admission or denial is obtained after visual observations by the party himself of the original documents. After looking into the documents, the party would be in in a position to admit or deny the same, which would not be possible, if the same is got done by his pleader.

7. In the light of the law, as expounded above, at the proper stage of the case, it would be open to the present petitioners to pray to the court for the examination of the parties.

8. In the light of the above consideration, it would be proper that the impugned order may be set aside and it would be open to the court below to consider the petitioners' application under Order 10. Rules 1 and 2. C. P. C. at the proper stage.

9. In the result, this revision petition is allowed and the impugned order is set aside. It would be open to the court below to consider the petitioners' application under Order 10. Rules 1 and 2. C. P.C.. at the proper stage. Costs shall be easy.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //