Onkarmal Bachhraj through Partners vs Kum. Priti

R.M. Lodha, J.—This revision application u/s 115 of the Code of Civil Procedure, 1908 (for short the C.P.C.) has been filed by the applicants dissatisfied with the order dated 1-7-1991 passed by the 7th Joint Civil Judge, Senior Division, Akola, whereby the said Court allowed the application filed by the plaintiff non-applicant under Order X, Rule 2 of the C.P.C. after the issues had already been framed for trial.

Brief facts of the case are that the non-applicant (hereinafter referred to as the plaintiff) filed a suit for recovery of the amount against the applicants (hereinafter referred to as the defendants) in the trial Court. On service of the plaint, the defendants filed the written statement and the trial Court on consideration of the pleadings of the parties framed the issues on 1-10-1989 for trial.

On 14-1-1991 the plaintiff moved an application purporting to be under Order X, Rule 2 of the C.P.C., stating therein that to restrict the controversy between the parties and before recording of evidence, it is necessary to examine the partner of the defendants Ramesh Shriram Mundada (Defendant No. 3) in relation to the document referred to in the plaint i. e. the statement of accounts given by the defendants to the plaintiff. The plaintiff submitted that this procedure and examination of Ramesh Shriram Mundada under Order X, Rule 2 of the C.P.C. is in the interest of justice.

The defendants contested the application under Order X, Rule 2 of the C.P.C. and submitted that once the issues have been framed and the matter is posted for trial, it was not open to the plaintiff to move an application under Order X, Rule 2 of the C.P.C. and the Court has no jurisdiction to examine Defendant No. 3 under Order X, Rule 2 of the C.P.C., because that stage has been already over.

The trial Court heard both the learned Counsel for the parties and held that to elucidate the matter in controversy, Defendant No. 3 can be examined under Order X, Rule 2 of the C.P.C. While passing the order a trial Court relied on the decision of the Rajasthan High Court in Bhanwarlal Kavad and Others Vs. Shyamsunder and Others, .

Shri L. Mohta, the learned Counsel for the applicants, has vehemently contended that the application under Order X, Rule 2 of the C.P.C. can only be entertained before framing of the issues and since the issues have already been framed on 1.19.1989, the stage of examining Defendant No. 3 under Order X, Rule 2 of the C.P.C. was already over. The learned Counsel submitted that thus the trial Court has committed serious error of jurisdiction in allowing the application filed by the plaintiff under Order X, Rule 2 of the C.P.C.

Nobody has appeared to oppose this civil revision application, despite service.

Order X, Rule 2 of the C.P.C. provides as under :

2(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 pleaders 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.

A look at the bare provision would show that the Court is empowered to examine orally any of the parties appearing in the suit at the first hearing of the suit with a view to elucidating the matter in controversy in the suit. Under Sub-rule (2) of Rule 2 of Order X of the C.P.C., provided that 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. It is true that even after the first hearing of the suit, on a subsequent hearing if any answer on material question is required from either of the parties, the Court may orally examine such party appearing in person or present in Court. However, the subsequent hearing only means the subsequent hearing after the first hearing of the suit and before issues are framed. Once the issues are framed, the parties know about the real controversy and have to lead evidence in support of their respective claims and the party on whom the burden has been placed, has to lead evidence. The provision under Order X, Rule 2 of the C.P.C. is not made to circumvent the burden which a party is required to discharge after issues have been .framed. As a matter of fact, examination of parties by the Court under Order X, Rule 2 is required to be made at the time of framing issues or before the issues are framed, because, if from that examination, if any material question arises, the Court may frame such issue so that, that may also be tried during the trial.

The trial Court appears to have not properly appreciated the ratio of the judgment of the Rajasthan High Court in Bhawarlais case (cited supra), because in that case the Rajasthan High Court has only held that the power under Order X, Rule 2 of the C.P.C. can be exercised at the first hearing of the suit and the first hearing of the suit means the stage when the issues are required to be framed. That does not mean that once the issues have been framed, the Court can examine either of the parties under Order X, Rules 1 and 2 of the C.P.C. The provisions of Order X, Rules 1 and 2 are operative till the issues are framed between the parties. Once the issues are framed, the parties have to discharge their burden on the issues so framed and proceed with the trial and neither of the parties can claim for examination of a person as the matters have already been elucidated and the material controversy is reflected by framing of the issues.

Consequently, the trial Court committed serious illegality and material irregularity in allowing the application filed by the plaintiff on 14-1-1991 under Order X, Rule 2 of the C.P.C.

Consequently, the impugned order dated 1-7-1991 passed by the 7th Joint Civil Judge, Senior Division, Akola, is quashed and as a result thereof the application filed by the plaintiff under Order X, Rule 2 of the C.P.C. stands rejected. Order accordingly.