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OPINION: First hearing of a suit – Need to amend the Code of Civil Procedure

The Code of Civil Procedure (‘CPC’) is a fairly detailed statute. It does a remarkable job of laying down the procedure to be adopted by civil courts; which has, broadly speaking, augured well for our legal system. However, over the years, many glaring mistakes in the Code’s drafting have also come to the fore. Many of these anomalies have been pointed out by the judiciary, which is entrusted with the task of interpreting some flawed provisions. In this piece, I will endeavour to highlight that the manner in which the phrase “first hearing of a suit” (“first hearing”) has been employed in CPC, is one such anomaly.

The phrase “first hearing of a suit” acquires immense importance, by virtue of the fact that it has been employed in three key provisions; i.e., Order X, Rule 1, Order XIV, Rule 1 and Order XV, Rule 1. Order X, Rule 1 deals with preliminary examination of parties, and is invoked to record oral statements of parties, which are in the nature of supplementary pleadings. Order 14, Rule 1 deals with framing of issues. Order 15, Rule 1 deals with disposal of a suit, when parties are not at variance.

A bare perusal of the aforementioned provisions reveals that all of these provisions get kicked in at the “first hearing of a suit.”  Thus, it becomes important to ascertain the point, in the course of a civil trial, which would qualify as the “first hearing.” Ideally, this would not have posed a problem, had the phrase had been clearly defined in the CPC. However, since the drafters of the Code did not deem it fit to define it, there is some ambiguity about the pint at which these crucial provisions would be attracted. In the absence of a clear definition of the phrase, the task of the adjudicator becomes difficult. It is made even more difficult by the fact that there seems to be an innate dichotomy in the deployment of the phrase in the provisions in question. To elaborate, both Order 10, Rule 1 and Order 14, Rule 1 state that they could be invoked at the “first hearing of a suit”. Even though Order 14, Rule 1 states that it would be kicked in after the statement under Order 10, Rule 2 – which is broadly similar to Rule 1 of Order 1- has been recorded, it also states that issues would be framed at the “first hearing of a suit.” In fact, there are several judicial pronouncements to the effect that the “first hearing” of a suit would be the point where preliminary examination of a party takes place and when issues are settled/framed. However, there is an inherent contradiction in that position, inasmuch as, both are distinct events, and cannot possibly take place at the same point, i.e., the “first hearing”. As a matter of fact, preliminary examination of parties – under Order 10, Rule 1 – is a sine qua non for framing of issues. This is for the reason that the fundamental object behind conducting preliminary examination of parties is to ascertain the real matters in controversy and narrow down the issues. This becomes imperative when a party’s pleadings are vague, and the court is of the opinion that preliminary examination would enable it to pinpoint the matters on which parties are at variance. In such a scenario, the court would peruse the statement recorded under Rule 1 of Order 10, before framing issues, in terms of Order 14, Rule 1. Thus, the scheme of CPC, to the extent it lays down that the “first hearing” would take place at the stage of preliminary examination of parties and also when the issues are framed, militates against logic. It indicates clumsy drafting, which necessitates an amendment, in order to define the phrase “first hearing of a suit.”

To illustrate how problematic the existing statutory framework is, it would be apposite to take note of the judgment of the apex court in the case of Kanwar Singh Saini v/s High Court of Delhi [2012 (4) SCC 307]. The said judgment was a criminal appeal in relation to Contempt of Court, but for the purpose of this article, it would suffice to note the portion dealing with provisions of CPC. In para six of the judgment, the Supreme Court opined:

Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the ‘first hearing of a suit’ which comes after framing of issues and the suit is posted for trial, i.e., for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order X, Rule 1, Order 14, Rule 1(5) and Order 15, Rule 1. The cumulative effect of the above referred provisions comes to that “the first hearing of a suit” can never be earlier than the date fixed for preliminary examination of parties and the settlement of issues. Hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause. Hearing, therefore, should be first in time after the issues have been framed. The date of ‘first hearing of a suit’ under CPC is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for  the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the ‘first hearing of a suit’ prior to determining the points in controversy between the parties i.e. framing of issues does not arise.”

A bare perusal of the aforementioned passage reveals that the Supreme Court, while undertaking the exercise of interpreting “first hearing of a suit” arrived at the conclusion that a statement under Order 10, Rule 1 can be recorded only after the issues have been framed. This problematic proposition was laid down, in large measure, by virtue of the fact that the phrase in question has not been defined in CPC. It would not be misplaced to contend that if the phrase had been defined in CPC, there would have been less confusion. The aforementioned proposition is misplaced, primarily, because, as explained hereinabove, the very purpose behind recording statements under Rule 1 of Order 10 is to narrow down the matters in controversy, which would enable the civil court to frame issues thereon. In other words, statements recorder under Order 10, Rule 1 become an important source for the court, as far as framing of  issues is concerned. Since such statements qualify as pleadings – supplementary pleadings, to be precise – it is incumbent on the civil court to take them into consideration while undertaking the exercise of framing the issues. Even otherwise, it could be contended that since there is nothing in the scheme of CPC to suggest that recording statements under Order 10, Rule 1 is dependent on framing of issues, there is no justifiable reason to delay recording statements under the aforementioned provision until issues have been framed. However, since the Code does not define the phrase “first hearing of a suit” and it has been erroneously employed in multiple provisions, the Hon’ble Supreme Court ended up committing the mistake of wrongly interpreting the phrase.

For the purpose of establishing that the drafters of CPC committed a mistake in not defining the phrase “first hearing of a suit” and the confusion it resulted in, it would be imperative to ascertain the true nature of Order 10, Rule 1; which would also establish that there is an innate contradiction between the employment of the aforementioned phrase in Order 10, rule 1 and Order 14, Rule1. In this context, it would be desirable to advert, in significant detail, to two reports of the Law Commission. In its 27th report, the Law Commission opined:

The object of the examination under Order 10 is to ascertain precisely the matters which are in dispute between the parties. If a proper use is made of the provisions contained in this Order, the Judge will, at an early stage of the suit, be in a position to sift the chaff from the grain. And to pinpoint his attention on the matters on which the parties are at variance.  A complete grasp of the case at an early stage of the suit will enable the Judge, when the suit comes up for hearing, to dispose it of expeditiously.”

Subsequently, after disapproving of the practice of civil courts to not take recourse to provisions of Order X, by opining that pleadings of parties are clear, the Law Commission went so far as to make the recommendation that examination under Rule 1 of Order X must be made compulsory. Thus, in the opinion of the Law Commission, the provision of Order 10, Rule 1 ought to be used by the court to ascertain the real matters in controversy at an early stage. It bears noting that the Commission went to the extent of suggesting that use of the provision should be made compulsory, which underscores the importance of the provision.  In so far as it opined that the provision ought to be used at an early stage to ascertain the real matters in controversy, its opinion is in consonance with the purpose behind the enactment of the provision. Thus, there is no sound rationale for holding that the statement under Order 10 should be recorded only after issues have been framed. Therefore, the ideal stage to sift the chaff from the grain, would be when pleadings are complete, as opposed to doing it when the issues have been framed.

At this juncture, it would be apposite to take note of the 14th report (Volume I) of the Law Commission. In the chapter titled “Trial of suits”, the Commission opined:

Thus, the three sources from which the Court derives the material necessary for framing the issues are the pleadings, the examination of parties and the documents produced by them. It is important to note that Orders X to XIII dealing with the examination of parties, production of documents and cognate matters precede Order XIV relating to issues in the Code. It is thus clear that the Code contemplates that the Court should have considered all matters relating to the controversy between the parties before it proceeds to frame the issues.”

Thus, in the said report, the Law Commission shed light on the scheme of CPC, and highlighted that since Orders X to XIII precede Order XIV, which deals with framing of issues, the provisions under Orders X to XIII would be attracted before the court undertakes the exercise of framing the issues. This is a particularly important aspect, which was not brought to the attention of the Hon’ble Supreme Court in the case of Kanwar Singh Saini v/s High Court of Delhi. The said observation cannot be faulted, as the chronology of provisions in CPC has a definite role and importance. To elaborate, as the Commission rightly opined, the fact that the provisions contained in Orders X to XIII precede Order XIV, which deals with framing of issues, it points to the legislative intent that the provisions of the said Orders would be attracted before issues are framed, in terms of Order XIV. Apart from this, the observations to the effect that the material required to frame issues would also include statements recorded under Order X and documents produced under Order XII also embellish the position that recording statements under Order X after issues have been framed would result in a protracted trial, and thus, would not serve the desired purpose.

As an illustration, let us consider a scenario wherein after the defendant files his written statement, the plaintiff feels that there in an element of vagueness in the former’s pleadings, and thus, it would be desirable for him to clarify his position in respect of a certain issue. In this backdrop, the plaintiff moves an application under Order X, Rule 1 immediately after the written statement is filed. In such a scenario, if the trial court is denuded of the power to record the defendant’s statement until the issues are framed, it would lead to an absurd situation; inasmuch as, if the statement of a party is recorded after the issues have been framed, it might warrant an amendment of issues. The reason being that since statements under Order X, Rule 1 are in the nature of supplementary pleadings, upon recording thereof, it might come to the fore that parties are at variance on another matter; framing whereof, as a distinct issue, would be imperative for proper adjudication of the suit. Such a situation would, for reasons which do not warrant much elaboration, be undesirable.

Therefore, upon comparing the usage of the phrase “first hearing of a suit” in the three provisions in question, the inescapable conclusion would be that its usage, in the current form, is extremely problematic. There is a clear need to define the phrase, so there is ambiguity regarding the precise point, during a civil trial, when the provision would be attracted. It is also clear that the approach of interpreting the phrase in question upon a conjoint reading of the three key provisions is also problematic, on account of clumsy drafting. Thus, in order to correct this anomaly, there is a need for the legislature to amend the Code; and incorporate an authoritative definition of the phrase “first hearing of a suit” and enunciate the precise points in time at which the aforementioned provisions would get attracted.

 

Avin Chhangani is an Advocate practising at Rajasthan High Court, Jodhpur. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.

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