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Order X Rule 2 of the Code of Civil Procedures, 1908 which deals with “Examination of Parties” is one of the indigenous provisions of the Code of Civil Procedure, which was even present at the time when the “Code of Civil Procedure” was first introduced as Act no. VIII of 1859. The Act was then passed by the Legislative Council of India and received the assent of the Governor General on 22nd March 1859. Under Act of 1859 was Section 125, which dealt with “Oral Examination of the Parties by Court”. That in last 164 years the provision has made its way from “MAY” to “SHALL”, which was once from the reading of the language appeared to be Discretionary, carrying on now appears to be mandatory.

The intent of the Provision is clear from its bare reading that at the first hearing of the Suit, the Court 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. The term elucidating means to understand something in a clearer way. In Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 The Hon’ble Supreme Court guided on the first date of hearing in the following manner, “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. “

The Question arises whether the Order X Rule 2 is a procedural requirement which is to be followed by the Civil Courts in every case pending before it or the same is a discretionary power vested with the Courts, to be exercised only in cases where the Parties have taken unclear or ambiguous stand in the pleadings. One school of thought strongly bats that Order X Rule 2 of the C.P.C. cannot be use as a method to compel a party to, depose contrary to the averments contained in the pleadings filed by the Party. The Hon’ble High Court of Delhi in Dr Vimla Menon & Anr Vs. Gopinah Menon held that “A bare reading of Order X of the CPC makes it apparent that the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is essentially a matter of discretion. Where a court feels that, in order to elucidate matters in controversy in the suit, oral examination of one or more of the parties to the suit is necessary, the court is empowered to so order”

The Delhi High Court Order simplifies that such power is discretionary and not mandatory and the same is to be exercised only in those cases where the Court is of the opinion in order to elucidate matters in controversy in the suit, Oral examination of one or more of the parties to the suit is necessary. 

Though the said Order clarifies the position on Order X power being discretionary , but in the same breath poses a far more practical issue, as to whether , in every case , where the Courts list the matter for Statement under Order X Rule 2 , whether the Court has to pass a detailed order, as to on what ground it seeks presence of the parties in person before the Court and whether there exist any ambiguity in the pleadings , and hence the examination of the Parties becomes imperative. 

That the Hon’ble Supreme Court of India in Supreme Court of India in M/S.Kapil Corepacks Pvt.Ltd.&  Vs Harbans Lal, 2010 examined the scope of Rule 2 of Order 10 of the Code of Civil Procedure and the correctness of invoking Section 340 of the Code of Criminal Procedure in regard to answers given by a party in an examination by the court under the rule. The Supreme Court was specifically concerned with the 4 questions and 1st being “What is the scope and ambit of Order 10, Rule 2 of the code?” the Hon’ble Supreme Court held that while Rule 1 enables parties to a court proceeding to admit or deny any counter allegations that may not have been expressly or implicitly admitted or denied in the pleading itself, Rule 2 is concerned with the broader objective of elucidating any particular matter that may be controversial in the suit. 

The court highlighted that the object of oral examination under Rule 2 is not to record evidence, in as much as the statement made under the aforesaid provision is not under oath nor intended to be a substitute for a regular examination under oath. The court further clarified that the purpose of Rule 2 was not to elicit any admissions, which are merely contemplated in the pleadings during examination of a party by the court under Order 10, Rule 1. The court held that the power under Order 10, Rule 2 cannot be converted into a process of selective cross-examination by the court, calling on any party to admit a document, before the party has an opportunity to put forth its case at the trial.

The position of the Court with respect to the satisfaction of the presiding officer should be on application of mind and that the matters cannot be posted for Examination of the Parties under Order X Rule 2 in a cursory manner. This position of law is well settled and the 2 leading Judgments on Order X Rule, one being 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.

The use of the said power should not be done and manner that supersedes the trial , the Hon’ble Court in 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.”

The provision 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.

Supreme Court of India in Vikas Aggarwal vs Anubha on 12 April, 2002 held that “We would like to observe that Order X CPC in an enabling provision providing that the court at the first hearing of the suit shall ascertain from each party about their pleadings. It does not in any manner place any bar on the powers of the court to seek clarification from any party in an appropriate case, at any date earlier than one fixed for framing of issues so as to advance the interest of justice.”

It is clear, from a reading of the said passages that, Order X Rule 2 is intended only to elucidate matters in controversy in proceedings and can be pressed into service only where there is a want of clarity in the pleadings. If, therefore, the pleadings of the parties were wanting in clarity then, in order to identify the exact issue in controversy in the suit, the court could justifiably resort to examination under Order X Rule 2 so as to clear the cobwebs.

The CPC provides for procedure for trial of suits. Procedural law is intended to facilitate the process of justice. As to how a procedural law is to be interpreted and which of the provisions are to be considered as directory or mandatory was considered by Hon’ble the Supreme Court in Mahadev Govind Gharge and others v. Special Land Acquisition Officer, (2011) 6 SCC 321, wherein it has been held that “29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold…….”. 

The Order X Rule 2 as on date is being used as a delay tactic and an adjournment tactic on account of unavailability of the Parties, the same obstructs the courts from “Framing of Issues” which consequently delays the trial. That many trial courts also, as a matter of practice , soon after completion of pleading, post the matter for examination of parties in a cursory manner, without respecting the intent of the Provision, which ultimately causes inordinate delay in the process of achieving Justice. 

The Article is authored by Viqas Malik and co-authored by Areeba Ahad  who are practising at the J&K High Court and work at “Malik and Romaan Law offices, Srinagar”. The Authors can be reached at Malikandromaan@gmail.com.


Child Abuse and POCSO Act

There is a saying that, “What you allow to happen in your presence is your standard”. It is hard to digest but it needs to be understood that the issue of child sexual abuse has always been rampant in our society and is now becoming very common in Jammu and Kashmir. It is an ugly truth and it is extremely sickening that such issues are either overlooked or dealt without proper alertness. Children may not be the 100% of our population but they definitely are the 100% of our future. Tender age of the child who is sexually abused is transformed into a lifetime of anxiety and depression. Every human has certain memories from his/her childhood and events like these in early life can lead to devastating consequences in the life ahead of such children. Children are defenseless and need security, affection, and tremendous sensitiveness as a result of their physical, mental, and other underdeveloped abilities.

Sexual abuse against children includes all situations in which a child is used for sexual pleasure either by an adult or a juvenile. Sexual abuse of child is not a phenomenon that is common only in a poor household. It also happens within the wealthy, middle class or rich families. There are several unreported cases of child abuse in schools or other educational centers including religious centers. Children who are sexually abused sometimes have to suffer from mental breakdown and need psychological help. The child loses the sense of dignity and self-worth andsuffers from the loss of confidence in the family and relatives.

Read full Article on http://risingkashmir.com/child-abuse-and-posco-act

“WILL” you ensure!

“WILL” you ensure!

In March this year, with the outbreak of the novel Coronavirus,a SARS 2 respiratory illness known as Covid-19, caused widespread health and wealth devastation around the world. The World Health Organization categorized COVID-19as a“Pandemic” and the only known and successful measure to curb the virusfrom spreading was by way of imposing a strict lockdown. The Government of India too had little choice and announced a countrywide lockdown. COVID-19is a first of its kind after decades, whichunfortunately is a multipronged attack on our health,lives, wealth and economy.The spectrum of risk that refracts from this pandemic is beyond comprehension and risks are broad enough to impact an individual on personal as well as professionalfront, the dependents are also destined to suffer the impact.

“WILL” you ensure!

In normal times,a “Will” was ordinarily prepared by those who were running towards old age and would foresee disputes amongst their family members after their demise. Hence, to protect their family a“Will” was prepared.

Read full Article on https://kashmirdespatch.com/will-you-ensure/?fbclid=IwAR3vW0SVuWhtR322daGEaqCqeyVgHY079IiWHsSQetclFWaTag5lcFLC5ac


Bail of YouTuber Faisal Wani (Malik and Romaan Law Kashmir)

The Legal Wing of Awani National Conference with the support of Advocates Viqas Malik, Romaan Muneeb and Amir Mushtaq has been successful in securing bail for Kashmiri YouTuber Faisal Wani who was taken into custody by the Jammu & Kashmir Police for uploading an alleged video depicting beheading of BJP Spokesperson Nupur Sharma, who had earlier insulted Prophet Muhammad (SAW) on a national TV debate.
In a statement issued to the Kashmir Media Watch, The Awami National Conference condemned the act of Nupur Sharma and sought strict legal action against her for intentionally insulting the faith and belief of 1.8 billion Muslims across the globe. Our party stands by the secular ethos and democratic values of our republic. Our Party resolutely stands against the venomous and communal propaganda being perpetrated by certain black sheep’s in the national media. We have and will always stand by the cause of the people of Jammu & Kashmir.


‘Jiski Lathi, Uski Bhains’: An Analysis from the Perspective of Social Distancing Norms in COVID-19

‘Jiski Lathi, Uski Bhains’: An Analysis from the Perspective of Social Distancing Norms in COVID-19

For those of us living in India right now, every day there’s a new set of rules and regulations and law handed down from Centre and State governments as they aim to stop the spread of coronavirus. Borders have been sealed, events have been cancelled, and many shops, businesses and services like court are yet to resume operations. Social distancing measures have been put in place and self-isolation is mandatory for most people crossing jurisdictions, and, of course, anyone returning from overseas or entering the country.

Practising ‘social distancing’ and undertaking mandatory self-isolation in a utopian society should have been largely based on trust – trusting people to follow the Public Health and Safety guidelines, as well as other sensible guidelines and recommendations. But in the wake of video footages showing crowds gathering, baithaks, and other similar mass gathering the rules have now changed.

Read Full Article on https://libertatem.in/articles/jiski-lathi-uski-bhains-an-analysis-from-the-perspective-of-social-distancing-norms-in-covid-19/