The Code of Civil Procedure establishes a framework for resolving Civil disputes providing a fair chance of representation of one's case, appreciation of the legal approaches in a set workable plan and manner.

Order X

This Order is intrinsically linked to the Law Of Pleadings and asks for a clarity in understanding the content through Examination of the parties in a set manner at the First Hearing of the Suit.

Order X Rule 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 the 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.

This exercise of ascertaining of Admissions and Denials as made in the pleadings of the parties before the Court stand to be with that part of admissions or denials (as are not expressly or by necessary implication admitted or denied) by the party against whom they are made.

So, the overreaching purpose of this rule is to focus on the area of litigation through the judicial lens upon recording of the preliminary statement. It may be understood as lifting the veil over admissions and denials out of the pleadings as being not expressly or by necessary implication admitted or denied by the party against whom they are made. It is a way forward to frame the issues with precision, clarity of understanding of the pleadings before the court.

In this discourse Order X Rule 1 needs to be consulted. It says for ascertainment from each party or his pleader whether he admits or denies such allegations of fact as are made in their pleadings and be not expressly or impliedly admitted or denied by the parties in their respective pleadings.

A serious dive into the pleadings of the parties at the hand of the court is thus called vide Order X with the aim to appreciate the controversy before it and in this regard the Procedural law guides that the court is to ascertain the admissions or denials as be not expressly made in the pleadings before the court.

Order X Rule1A. Direction of the Court to opt for any one mode of alternative dispute resolution:-

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 1A of Order X Code of Civil Procedure is to be followed next after compliance of Rule 1 of Order X i.e. after recording admissions/ denials as to those admissions / denials as are not made expressly or be read so upon implied construction.

Sec 89 Code of Civil Procedure exists as a Special Proceedings chapter contained in Part V of the Code of Civil Procedure under the Head of Arbitration, speaking of settlement of the disputes outside the court.

Procedural observation vide Section 89 is speaking that where it appears to the court that there exist elements of a settlement, as be acceptable to the parties, the Court may formulate the terms of settlement and give them to the parties for their observations and after receiving these observations, the Court may then formulate the terms of possible settlement and refer the same for:

a)   Arbitration

b)   Conciliation

c)    Judicial settlement including settlement through Lok Adalat; or

d)   Mediation.

Order 10 Rule1B. Appearance before the Conciliatory Forum or Authority

Where a suit is referred to Order 10 Rule 1A the parties shall appear before such forum or Authority for conciliation between the parties.

Order 10 Rule 1C. Appearance before the Court consequent to the Failure of efforts of conciliation

Where a suit is referred under Order 10 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.

Satisfaction of the Presiding Officer or of the Authority to hold that it would not be proper to hold the matter for Conciliation, Settlement and then upon this observation the matter referred Vide Section 89 of the Code of Civil Procedure needs to refer the matter back to the Court for consideration, however with the direction to the parties to appear again before the Court, where from the matter would have been referred in compliance of Section 89.

Saving clause (e) Section 89 and rules 1A, 1B and 1C of Order X of the First Schedule, as inserted in the Principal Act by Section 7 and Section 20 of this Act, shall not affect any suit in which issues have been settled before the commencement of Section 7, and every such suit shall be dealt with as if Section 7 and 20 had not come Into force.

Order X Rule 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 seems for and

(b) may orally examine any person, enable 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 exam under this rule questions suggested by either party.

So, at the First Hearing of the Suit the Court is required to follow Rule 2 of Order X and this stage is obviously to appear or to come after observance of Rule1, 1A, 1B, 1C of Order X, as above quoted.

Upon exercise of option vide Order 10, Rule 1A for any mode of alternative dispute resolution, if the presiding officer of conciliation forum or authority be satisfied that it would not be proper in the interest of justice to proceed with the matter further, then in such an eventuality vide Order 10, Rule 1C, the presiding officer of conciliation forum or authority shall refer the matter again to the court and direct to the parties to appear before the court on the date fixed by it. The conciliation forum or the authority is as such to refer the matter back to the court from which it had been referred to it.

It is reiterated hereby that the objective of examination of the parties to the suit vide Rule 2 of Order X is to elucidate the matter in controversy.

It is not a final stop here after compliance of Rule 1(a), (b) of Rule 2 Of the Code as to oral examination of any party appearing in person or present in court or any person able to answer any material question relating to the suit but the Court may at any subsequent hearing vide sub rule 3 of Rule 2 of Order X orally examine any party appearing in person or present in court or any person able to answer any material questions relating to the suit by whom such Party or his pleader is accompanied.

Upon this examination of a party vide Rule 2 of Order X at the First hearing of the suit within the tenor and tone of sub rule 3 of Rule 2 of Order X Court may allow suggestive questions of the parties. Vide sub rule 2 of Rule 2 of Order X, it is at the subsequent hearing i.e., after the First Hearing of the suit 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 and vide sub rule 3 of Rule 2 of Order X speaks that the Court may if it thinks fit, put in the course of an examination under this rule questions suggested by either party.

From the above discourse, it is clear that after undergoing the process/ the stage of ascertainment whether allegations in pleadings are admitted or denied and the follow-up of the procedure vide Rule 1A of Order X complying the mandate of Section 89 of the Code of Civil Procedure it is at the first hearing of the suit vide Rule 2 of Order 10 oral examination of party or companion of party with a view to elucidate the matter in controversy in the suit is required to be complied with and vide sub rule 2 of Rule 2 of Order 10, it is 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 questions relating to the suit and the Court may if it thinks fit, put in the course of examination under sub rule 3 of Rule 2 Order X questions suggested by either party.

The oral examination of party or companion of party in a suit vide Rule 2 is to be at the first hearing of the suit. What is this “First Hearing”? Here it is imperative to know what is “First Hearing” in a civil trial.

One does not find any definition or explanation of this legal expression “First Hearing”. Before coming to its understanding it is found needful and rather compulsory to study Order 14, Order 16 as well.

Order 14 (1–7)

Framing of Issues :

(1) Issues arise when a material proposition of facts or Law is affirmed by one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds: (a) issues of fact and (b) issues of law.

(5) At the First hearing of the suit the Court shall, after reading of the plaint and the written statement, if any, and after examination of the parties under Rule 2 of Order X and after hearing the parties or their pleaders ascertain upon what material propositions of fact or of law the parties are at variance, and shall there upon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the court to frame and record issues where the Defendant at the First hearing of the suit makes no defence.

As such upon reading Order XIV it is clear that at the First hearing of a case, after going through the pleadings of the parties before the Court, after their examination vide Rule 2 of Order X and after hearing the parties the Court is to ascertain as upon what material propositions parties are at variance and thereupon proceed to frame the issues.

So, it becomes understandable that First Hearing in a civil trial is born with the framing of the Issues.

As a matter of general observance, upon presentation of pleadings from the parties to the suit straight away, the preliminary statement of parties is recorded and then it is followed with the framing of issues. How much this precedent before the courts finds accord with the set Procedure is somewhat intriguing the relationship of understanding of the statute itself and the need to know the legal appreciation of the topic.

On recap of Order X Rule 1, it is clear that at the first the Court shall undergo for admissions and denials of the allegations of fact as made in the plaint or written statement as are not expressly or by necessary implication admitted or denied by the party against whom they are made. After this process, the Court is to direct the parties to opt for any one mode of alternative dispute resolution and upon its failure the matter comes again before the Court. The next step falls vide Rule 2 Order X. On scanning Rule 2 Order X, the oral examination of the party or companion of party with a view to elucidate matter in controversy is to be carried at the first hearing of the suit.

This expression “at the first hearing of the suit” takes the front seat of the conundrum as When does it start? It is the First Hearing after noting down the admissions and denials, after recording their preliminary statement or is it framing of the issues.

So again, the conundrum, What is First hearing?

Is it after compliance of Order X i.e. after noting down the admissions and denials, after recording their statements, after hearing the parties or is it on the act of framing of issues by the court?

Answer to it becomes ticklish, moreso, on reading Order XV, Disposal of the Suit at the First Hearing,

Order XV rule 1.— Parties not at issue

Where at the First Hearing of a suit it appears that the parties are not at issue on any question of law or fact the Court may at once pronounce judgement.

Again, Code is silent to define as What is First Hearing.

This point of debate has arisen in many shapes and shades before the courts of law and so, herein too, assistance towards understanding of the subject and with the faith as no injury be caused upon reading, understanding and appreciation of this Legal expression that is what does this expression “At the First hearing “ mean.

Ved Prakash Wadhwa vs Vishwa Mohan (1981) it is held:

First hearing can never be earlier than the date fixed for the preliminary examination of the parties & settlement of Issues.

Same is reiterated in Kanwar singh Saini vs High Court of Delhi (2012). First hearing comes after framing issues and not earlier to it.

So, First Hearing is held to come on framing of the issues.

Order X saying for ascertainment of admissions and denials as are not made expressly or impliedly and procedure mandate the observance of Sec 89 of the Code of Civil Procedure before coming to Rule 2 of order X, which states for recording the substance of the statement of parties and where the objective of this statement recording is elucidation of controversy of the matter in controversy. At the same time Order 14 saying at the First Hearing, after reading the plaint and the written statement and after compliance of Rule 2 of Order X and after hearing the parties, the Court is to ascertain from the material propositions of fact and law the variance among the parties and shall thereupon proceed to frame the issues.

Order XV says at the First Hearing if the parties are not in variance at the point of law or of the fact the Court the Court may pronounce judgement.

So, all these observances as stand referred Vide Order X, Order XIv, Order XV are to be met at the First hearing i.e

At the First hearing, vide Order X,

To ascertain admission/ denials as not expressly made or as not impliedly constructed to refer the matter in observance of Sec 89

To examine the parties orally for elucidation of the matter in controversy, to accept suggestive questions upon examination of parties.

Vide Order XIV, again at the First Hearing, the Court shall after reading the plaint and the written statement and after compliance of Rule 2 of Order X, the Court to ascertain the points of law/ fact as stand at variance from the pleadings of parties to frame Issues.

To know the scope, purpose of sub rule 2 of Rule 2 of Order X, which says : 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, as a matter of common observation this provision of law is hardly found observed and no exaggeration in saying that it's existence is found on its practical side as good as a mucilage. Be it is, either this sub rule 2 of Rule 2 of Order 2 is either overlooked or no proper assistance is rendered to the courts from the lawyers side.

The scope and stage i.e. the placement of recording the statement vide Rule 1 of Order X l, sub rule 1, b2 of Rule 2 of Order X and vide Sub Rule 2 of Rule 2 of Order X is all with a set purpose and intent and so, cannot be brushed aside or say ignored or not left unattended or un addressed.

Order X, Rule 2 (2) starts as.. 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.

Sub rule 3 of Rule 2 of Order X.— The court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.

The question arises is this examination of any party appearing in person or present in court or any person able to answer any material question relating to the suit to be read in addition to the one as recorded vide Rule 1, 2 of Order X or not and if so, is it after ist hearing of the suit.

As to it, it gets understood by the opening phraseology of the sub rule 2 of Rule 2 of the Order X as it says, “ At any subsequent hearing …” and so it cannot be read as at the First Hearing stage. It is at a subsequent stage and that can be after the First Hearing.

Again then the topic stuck at this point as to what is the Firstt day of hearing?

In Kanwar Singh Saini Vs Delhi High Court (2012) it got held that Order 10 rule 2 provides for recording of the statement of parties at First Hearing, which comes after the Framing of Issues and it can never be earlier than the date fixed for preliminary examination of the parties and the settlement of Issues. First day of hearing dies not mean the day for the return of summons but the day on which the Court applies its mind to determine the issues and evidence.

Order X Rule 1 says for ascertainment whether allegations in Pleadings are admitted or denied as are not expressly or impliedly admitted or denied and this is to be done at the First Hearing.

After this exercise the Court is to follow the mandate of Section 89 Code of Civil Procedure and after and incase, this Settlement, Mediation, Arbitration, reconciliation has not been successful or found not to undergo in the interest of justice then parties are to be referred back to the assignee court and it is after compliance with rule 1A, 1B, 1C of Rule 1 Order X, the Court is to observe Rule 2 of Order X ie to undergo for examination of party and order X Rule 2, again opens with the expression “At the First hearing …’ and as per the Kanwar Singh Sain (2020) judgment, the First day of Hearing does not mean the day for the return of the summons or the returnable date but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken …”

 It is therefore understood that the function in terms of Order X, rule 1, 1A, 2B, 1C and the action in terms of Order X Rule 2, is at the First hearing and first hearing itself cannot be earlier to framing of issues.

Order X Rule 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.

Order X Rule 4, Consequence of refusal or inability of pleader to answer

(1)  Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court (may postpone the hearing of the suit to a day not later than Seven days from the date of First hearing) and direct that such party shall appear in person on such day.

(2)  If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgement against him, or make such order in relation to the suit as it thinks fit.

Purpose of Rule 4 of Order X, is thus to let the Court to know reply from a party litigant before it in a case as to material questions relating to the suit and this reply can be given by the pleader or by any such person accompanying the pleader as referred in rule 2 i.e. companion of party. It is if the court draws the opinion that the pleader or the companion of the party litigant is unable to answer any material question relating to the suit or when such a person refuses to answer and the Court opine that the party whom he represents ought to answer and is likely able to answer if interrogated in person, the Court may postpone the hearing of the suit not later than Seven days time from the date of First hearing and direct such party shall appear in person on such day.

Upon failure of such a party without any lawful excuse to appear in person on the day so appointed, the Court may pronounce judgement against him or make such order in relation to the suit as it thinks fit.

The fulcrum of applied law vide Rule 1, sub rule (1) (a), (b) of Rule 2, Order XIV, order XV rests upon understanding of a legal expression of “First Hearing” The judgment Kanwar Singh Saini, supra held, holds in the field of application.

Order XIV rule 1, sub rule (5) speaks that at the First hearing of the suit, the Court shall, after reading the plaint and the written statement, if any, and after examination under Order 2 of order X and after hearing the parties or their pleaders ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the Issues on which the right decision of the case appears to depend.

Order XIV Rule 3 reads that court may frame the issues from all or any of the following materials.

(a)  Allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties.

(b)  Allegations made in the pleadings or in answers to interrogatories delivered in the suit.

(c)  The contents of documents produced by either party.

Order XIV Rule 4.— Court may examine witnesses or documents before framing issues

Where the Court is of opinion that the issues cannot be correctly framed without the examination of some persons not before the Court or without the inspection of some document not produced in the suit, it (may adjourn the framing of issues to a day not later than Seven days) and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

As such understanding the expression “the First Hearing” and the “framing of issues “ through analytics as carried vide Order X, vide Order XIV, Order XIV and Order XV ask for a conjoint reading to refract a harmonious construction to the objective achievement. The observance of this procedural tool in breach is obviously to drift the trial from a fair trial texture.