In a recently reported decision [M/s. Kapil Corepacks Pvt.Ltd. v. Harbans Lal, AIR 2010 SC 2809], the Supreme Court has clarified the scope of examination of a witness by the Court. Reflecting in the context of the power of a court to cross-examine a witness in terms of Rule 2 of Order 10 of Code of Civil Procedure, the Supreme Court clarified the law in the following terms;
8. The said order is challenged in this appeal by special leave. On the contentions urged by the learned counsel, the following questions arise for our consideration:
(i ) What is the scope and ambit of Order 10 Rule 2 of the Code?(ii) Whether the court could, in an examination under Order 10 Rule 2 of the Code, confront a defendant with only the signature portion of a disputed unexhibited document filed by the plaintiff (by covering the remaining portions of the document) and require him to identify the seal/stamp and signature?(iii) Whether on the basis of the answer given by a party, in response to a question under Order 10 Rule 2 of the Code, the court could prosecute him under Section 340 of Code of Criminal Procedure read with Section 195 of the Indian Penal Code?
Re : Question (i)
9. We may first advert to the relevant provisions. Rule 2 of Order 10 of the Code as also Rules 1 and 3 are relevant and they are extracted below :
“ORDER 10 – EXAMIANTION OF PARTIES BY THE COURT
1. Ascertainment 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.
3. Substance of examination to be written --
The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.”
10. Rule 1 enables the court to ascertain from each of the parties (or his pleader), at the first hearing whether he admits or denies such of those allegations of fact made in the pleadings of the other party, which were not expressly or by necessary implication admitted or denied by him. In other words, if the defendant in his written statement fails to expressly or by necessary implication admit or deny any of the plaint allegations, the court can ascertain from the defendant, whether he admits or denies the said plaint allegations. Similarly, if the defendant has made some allegations against the plaintiff in his written statement, and no reply is filed thereto by the plaintiff, the court can ascertain whether plaintiff admits or denies those allegations. Resort to Rule 1 of Order 10 is necessary only in cases where the court finds that the plaintiff or the defendant has failed to expressly or impliedly admit or deny any of the allegations made against him, by the other party. Examination under Order 10 Rule 1 of the Code will not be necessary where the pleadings of each party have been fully and clearly traversed by the other party.
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 elective 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 v. 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.”
A Division Bench of the Madras High Court in Arunagiri Goundan v. Vasantharoya Koundan & Ors (AIR 1949 Madras 707), held as follows referring to Order 10 Rule 2 of the Code :
“At the outset it must be pointed out that this (Order 10 Rule 2) does not provide for an examination on oath. This provision was intended to be used to elucidate the matters in controversy in suit before the trial began. This is not a provision intended to be used to supersede the usual procedure to be followed at the trial.”
13. The object of Order 10 Rule 2 is not to elicit admissions. Nor does it provide for or contemplate admissions. The admissions are usually contemplated (i) in the pleadings (express or constructive under Order 8 Rule 5 of the Code); (ii) during examination of a party by the court under Order 10 Rule 1 of the Code; (iii) in answers to interrogatories under Order 11 Rule 8 of the Code; (iv) in response to notice to admit facts under Order 12 Rule 4 of the Code; (v) in any evidence or in an affidavit, on oath; and (vi) when any party voluntarily comes forward during the pendency of a suit or proceedings to make an admission.
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.
Re : Question No.(ii)
15. Learned counsel for the appellants contended that confronting the signature portion of a disputed document by covering up the remaining portions, is a tool in the arsenal of the cross examining counsel. He submitted that the court examining a party under Order 10 Rule 2 of the Code while purporting to elucidate the matters in controversy, cannot confront the signature portion of a disputed unexhibited document by adopting the procedure of covering up the other portions of the agreement.
16. The learned counsel for the respondents on the other hand submitted that the power of the court under Order 10 Rule 2 of the Code, to examine any party with reference to any document is wide and unrestricted and therefore, any procedure adopted to arrive at the truth, could not be said to be a deviation from the normal examination under Order 10 Rule 2 of the Code. He relied upon the decisions of several High Courts in support of his contention that the court could confront a party with a document and seek his admission in respect of its execution. The decisions relied upon are : Bhanwarlal Kavad v. Shyamsunder [AIR 1984 Raj. 113], Amrita Devi v. Sripat Rai [AIR 1962 All. 111], Rajiv Srivastava v. Sanjiv Tuli [AIR 2005 Del. 319] and Gautam Adani v. Container Corporation of India [150 (2008) DLT 281]. On a careful consideration of these decisions, we find that they are not of any assistance in this case.
16.1) In Bhanwar Lal Kavad (supra), a learned Single Judge of Rajasthan High Court held:
“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 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 a position to admit or deny the same, which would not be possible, if the same is got done by his pleader.”
16.2) Learned Single Judge of the Allahabad High Court in Amrita Devi (supra) and the Division Bench of Delhi High Court in Rajiv Srivastava (supra) held that an admission made by a party under Order 10 Rule 2 of the Code is conclusive against him, and the court can proceed to pass judgment on the basis of such admission.
16.3) In Gautam Adani (supra), a Division Bench of the Delhi High Court referred to the scope of Order 10 Rule 2 thus:
“…..we are of the view that examination of the parties is a matter that is per se intended not so much for determining any right or obligation in the suit or resolving or adjudicating upon a controversy as it is for identifying the precise area of controversy so that the same can be effectively adjudicated upon. The distinction between any order which adjudicates upon a controversy or a part thereof and another which simply attempts to identify the real area in controversy cannot be lost sight of. Inasmuch as the impugned order directed the defendants to remain present for recording their statements under Order 10 Rule 2, it was an attempt to identify the real issues in controversy and to elucidate matters which, in the opinion of the learned Single Judge, required to be elucidated.”
16.4) None of these decisions assists the respondents. Bhanwar Lal Kavad recognizes the power of the court to call upon a party to admit a document. Amrita Devi and Rajiv Srivastava reiterate the position that if a party makes an admission of fact, it will be binding on him. Gautam Adani supports the contention of the appellants that the scope of Order 10 Rule 2 of the Code is limited to identifying the matters in controversy and not to adjudicate upon the matters in controversy.
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.
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