Code of Civil Procedure, 1908 (CPC)
Order X CPC: Examination of Parties by the Court and Reference to Settlement
Between the close of pleadings and the framing of issues sits a stage that is easy to overlook and that the Code takes seriously. Order X of the Code of Civil Procedure, 1908 requires the court, at the first hearing, to examine the parties in order to ascertain what is really in dispute, to record admissions and denials, and, since the 2002 amendment, to consider whether the dispute should be referred to settlement outside court under Section 89. These notes cover the whole Order, its purpose, and its place in the sequence that leads to Order XIV.
1. The Object of Order X
Pleadings are drafted defensively. A plaint claims more than may be provable, a written statement denies more than is really disputed, and the result is a record that conceals the true area of controversy behind formal assertions. Order X gives the court a direct means of cutting through: the judge puts questions to the parties themselves, in open court, and ascertains from their answers what is admitted and what is genuinely in issue. The object is threefold: to narrow the dispute before issues are framed, to record admissions that will relieve the parties of proof, and, where the real dispute admits of it, to divert the case to settlement under Section 89 before it consumes trial time.
2. Rule 1: Ascertainment of Admissions and Denials
§ Order X Rule 1, CPC 1908 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. |
The rule is mandatory in form, the court shall ascertain and shall record, and it operates on a defined field: the allegations that are not already expressly or impliedly admitted or denied in the pleadings. It therefore works alongside Order VIII Rule 5, under which an allegation not denied is taken to be admitted: Rule 1 of Order X catches what the pleadings leave ambiguous, and converts silence into a recorded position. The admissions recorded are valuable in two ways: they narrow the issues the court frames under Order XIV, and they may found a judgment on admissions under Order XII Rule 6, which allows the court, at any stage, to pronounce judgment on admissions of fact made in the pleadings or otherwise, whether orally or in writing.
3. Rules 1A, 1B and 1C: Reference to Settlement under Section 89
§ Order X Rules 1A, 1B and 1C, CPC 1908 Rule 1A. After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. Rule 1B. Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit. Rule 1C. Where a suit is referred under rule 1A, and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it. |
These three rules, inserted by the Amendment Act of 2002, are the procedural vehicle for Section 89, under which, 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 refer the same for arbitration, conciliation, judicial settlement including settlement through Lok Adalat, or mediation. In Salem Advocate Bar Association v. Union of India (II), (2005) 6 SCC 344 the Supreme Court settled the working of Section 89 and commended model rules to the High Courts, and in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24 the Court clarified the procedure, holding that the court should consider reference after the pleadings are complete and admissions and denials recorded, that arbitration and conciliation require the consent of the parties while the other modes do not, and that certain categories of case, such as those involving serious allegations of fraud, prosecution for criminal offences, or claims against the public at large, are normally unsuitable for reference.
4. Rule 2: Oral Examination of Parties and Companions
§ Order X Rule 2, CPC 1908 (1) At the first hearing of the suit, the Court shall orally examine such of the parties to the suit appearing in person or present in Court, as it deems necessary, and shall, for that purpose, put such questions to the party as the Court thinks fit, to elucidate matters in controversy in the suit. (2) At any subsequent hearing, the Court may put such questions to any party appearing in person or present in Court, or to any person accompanying him. (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. |
Three features of the power repay attention. The examination is by the court, not by counsel: it is an inquiry to elucidate the matters in controversy, not a cross-examination, and the court may adopt questions suggested by either party under sub-rule (3). It extends under sub-rule (2) to any person accompanying a party, which allows the court to reach the person who actually knows the facts where the party is a formal litigant. And the answers are not evidence in the ordinary sense: their purpose is to identify the dispute, and a party is not bound by them as by testimony on oath, though a clear admission recorded under Rule 1 stands on a different footing. T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 treats the Rule 2 power as an active tool: where a plaint appears vexatious, the court should examine the party under Order X before deciding whether to reject the plaint under Order VII Rule 11.
5. Rules 3 and 4: Recording and Consequences
i. Rule 3: substance recorded. The substance of the examination shall be reduced to writing by the judge and shall form part of the record. What is recorded is the substance, not a verbatim transcript, and it is the record that carries forward into the framing of issues.
ii. Rule 4: refusal or inability to answer. Where the party or the person accompanying him refuses or is unable to answer a material question relating to the suit which the court puts, the court may postpone the hearing to a future day and direct that the party shall appear in person, or that such person shall be present, on that day. If he again fails without lawful excuse, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
§ Rule 4 in perspective The sanction in Rule 4 is severe on its face, but it is used sparingly and in a graduated way: the court first postpones and directs attendance, and only on a second failure without lawful excuse may it pronounce judgment or make such order as it thinks fit. Even then, as with Order VIII Rule 10, the power is not exercised mechanically. Where the suit requires proof, the proper course is to make such order in relation to the suit as justice requires rather than to decree it on a default of answering. |
6. Where Order X Sits in the Sequence
Stage | Provision | What happens |
|---|---|---|
Pleadings complete | Orders VI, VII and VIII | The plaint and written statement are on record, with any set-off or counterclaim |
First hearing: admissions and denials | Order X Rule 1 | The court ascertains from each party what is admitted and what denied, and records it |
First hearing: reference to settlement | Section 89 with Order X Rules 1A to 1C | The court directs the parties to opt for a mode of settlement outside court, and fixes a date before that forum |
First hearing: examination of parties | Order X Rules 2 to 4 | The court orally examines the parties and any person accompanying them to elucidate the matters in controversy |
Discovery and admissions | Orders XI and XII | Interrogatories, discovery, inspection and notices to admit narrow the field further |
Framing of issues | Order XIV Rule 1 | Issues are framed on the material propositions affirmed by one side and denied by the other |
Disposal at first hearing, where possible | Order XV Rules 1 and 3 | Where the parties are not at issue, or are at issue and ready, the court may pronounce judgment or try the suit at once |
7. Landmark Judgments
- Salem Advocate Bar Association v. Union of India (II), (2005) 6 SCC 344. The working of Section 89 and Order X Rules 1A to 1C settled, with model rules for the modes of settlement commended to the High Courts.
- Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24. The procedure for reference under Section 89 clarified: the stage at which reference is considered, the requirement of consent for arbitration and conciliation, and the categories of case normally unsuitable for reference.
- T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467. Where a plaint appears vexatious, the court should examine the party under Order X before deciding on rejection under Order VII Rule 11.
- Order XII Rule 6. The court may at any stage pronounce judgment on admissions of fact made in the pleadings or otherwise, which is how admissions recorded under Order X Rule 1 bear fruit.
8. Frequently Asked Questions on Order X
What is the object of Order X CPC?
To ascertain, at the first hearing, what is really in dispute between the parties: the court records admissions and denials under Rule 1, directs the parties to opt for settlement outside court under Rules 1A to 1C, and orally examines the parties under Rule 2 to elucidate the matters in controversy before issues are framed.
Is examination of parties under Order X mandatory?
Rule 1 is mandatory in form: the court shall ascertain and record admissions and denials. The oral examination under Rule 2 is to be conducted at the first hearing in respect of such parties as the court deems necessary, so the extent of the examination is a matter for the court, but the exercise itself is part of the prescribed procedure.
Are answers given under Order X evidence in the suit?
Their purpose is to elucidate the matters in controversy rather than to prove facts, and they are not testimony in the ordinary sense. The substance is recorded under Rule 3 and forms part of the record, and a clear admission recorded under Rule 1 may found a judgment on admissions under Order XII Rule 6.
What is the role of Section 89 at the Order X stage?
After recording admissions and denials, Order X Rule 1A requires the court to direct the parties to opt for one of the modes of settlement outside court specified in Section 89, that is, arbitration, conciliation, judicial settlement including Lok Adalat, or mediation, and to fix a date before the forum chosen.
Which cases are unsuitable for reference under Section 89?
Afcons Infrastructure indicates categories normally unsuited to reference, including cases involving serious and specific allegations of fraud or fabrication, cases involving prosecution for criminal offences, claims against the public at large such as representative suits, and matters requiring the protection of courts such as those involving minors or persons under disability.
What happens if a party refuses to answer questions under Order X?
Under Rule 4 the court may postpone the hearing and direct the party to appear in person on a future day. If he again fails without lawful excuse, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
9. Related Topics in This CPC Series
- Order XI: Discovery, Inspection and Production of Documents
- Order IX: Appearance and Non-Appearance of Parties
- Order VIII: Written Statement, Set-Off and Counterclaim
- The CPC Amendments of 1976, 1999 and 2002