Examination of Parties by Court (Order X)

Order X of the Code of Civil Procedure, 1908 equips the court with the procedural means to read behind the pleadings at the first hearing. Rule 1 directs the court to ascertain from each party which allegations of fact in the opposite pleading are admitted and which denied, and to record those admissions and denials. Rule 1A, inserted by the 1999 amendment, requires the court — after the Rule 1 ascertainment — to direct the parties to opt for one of the alternative-dispute-resolution modes specified in Section 89. Rules 1B and 1C deal with appearance before the conciliatory forum and the consequences of failure of conciliation. Rule 2 empowers the court to orally examine parties, or persons accompanying parties, with a view to elucidating the matters in controversy. Rule 3 requires the substance of the examination to be reduced to writing. Rule 4 supplies the consequence where a pleader refuses or is unable to answer.

The chapter is short — only four rules — but doctrinally important. It also operates on a procedural ladder reaching back to institution of suits under Sections 26 to 35B and plaint drafting under Order VII. The first hearing under Order X is the procedural pivot at which the suit changes character from a clash of pleadings into a focused inquiry. The Supreme Court has consistently treated Order X as a power for the court to go to the core of the matter and narrow down the controversy.

Scheme of Order X

Order X operates at the first hearing of the suit — a stage that follows issue and service of summons under Order V and filing of the written statement under Order VIII. At this stage, the pleadings are complete; the court must determine what is actually in dispute. The procedural sequence is: (i) Rule 1 — ascertain admissions and denials; (ii) Rule 1A — direct ADR option under Section 89; (iii) Rule 2 — orally examine parties and accompanying persons to elucidate the controversy; (iv) Rule 3 — record the substance; (v) Rule 4 — postpone hearing for personal appearance where the pleader cannot answer.

The work done at Order X feeds directly into framing of issues under Order XIV and into disposal of the suit at the first hearing under Order XV. Order XIV Rule 1(5), as amended in 1976, expressly requires the Order X examination to be kept in mind when framing issues.

What is the “first hearing”?

The Code does not define "first hearing". The Supreme Court in Arjun Khiamal Makhijani v Jamnadas C Tuliani, (1989) 4 SCC 612, held that the first hearing is the day on which the court applies its mind and goes into the pleadings to understand the parties' contentions — not the day fixed for filing the written statement. Sudershan Devi v Sushila Devi, (1999) 8 SCC 86, refined the test: it is the date proposed for hearing — the date proposed for the court to apply its mind to the points in controversy and to frame issues.

Rule 1 — ascertainment of admissions and denials

Rule 1 obliges the court at the first hearing to ascertain from each party or his pleader whether he admits or denies the allegations of fact in the opposite pleading that are not expressly or by necessary implication admitted or denied by the party against whom they are made. The admissions and denials must be recorded.

The object is twofold: to clear up ambiguities in the pleadings and to ascertain the exact points of difference. The Allahabad High Court in Annie v Babal, AIR 1976 All 24, identified the purpose as finding out the real points in controversy by removing ambiguities in the pleadings and seeing how far each party is prepared to admit the other's case. The Patna High Court in Balmiki v Mathura, AIR 1968 Pat 332, held that admissions or denials not contained in the pleadings, but elicited at the oral examination, must also be recorded — the examination is not limited to the specific allegations in the pleadings.

A statement made under Rule 1 is conclusive against the party making it. The position is stricter than under Rule 2, where the statement, being part of the record, is liable to be considered alongside the other evidence and may be retracted on proof of mistake (Kailash v Rattan, AIR 1974 P&H 38).

Rules 1A, 1B and 1C — Section 89 ADR reference

Rule 1A, inserted by the 1999 amendment with effect from 1 July 2002, requires the court — after recording admissions and denials — to direct the parties to opt for one of the modes of settlement outside court specified in Section 89(1): arbitration, conciliation, judicial settlement (including Lok Adalat settlement), or mediation. The court fixes the date for appearance before the chosen forum.

Rule 1B requires the parties to appear before the chosen forum or authority for conciliation. Rule 1C requires the conciliation forum, on being satisfied that it would not be proper in the interests of justice to proceed further, to refer the matter back to the court and direct the parties to appear before the court on the date fixed.

Salem Advocate Bar Association — the binding interpretation

The Supreme Court in Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344 (Salem-II), interpreted Rule 1A in the light of Section 89. The use of "may" in Section 89 and "shall" in Rule 1A is not a conflict — "may" in Section 89 governs only the reformulation of possible terms of settlement and the reference to one of the ADR modes, while "shall" in Rule 1A makes it mandatory for the court to direct the parties to opt. The Court directed High Courts to frame rules under Part X of the Code covering the manner in which an ADR option is to be made.

The seminal exposition of the procedural framework came in Afcons Infrastructure Ltd v Cherian Varkey Construction Co (P) Ltd, (2010) 8 SCC 24, where the Supreme Court mapped out the categories of cases suitable for each ADR mode and the practical mechanism of reference. Suits relating to recovery of money, family disputes, employment matters, and disputes between neighbours were treated as ordinarily suitable for mediation; commercial disputes for arbitration where there is a contractual clause; and matters of public interest or involving the state for judicial settlement.

Rule 1A, 1B and 1C do not have retrospective effect. The Kerala High Court in Basheer v Kerala State Housing Board, AIR 2005 Ker 137, held that suits in which issues had been settled before 1 July 2002 are not subject to the new ADR procedure. The link between Order X Rule 1A and Section 89 reference to ADR is the central reform of the 1999 amendment.

Rule 2 — oral examination of parties

Rule 2 has three sub-rules. Sub-rule (1)(a), inserted in 1976, requires the court at the first hearing to orally examine such of the parties personally appearing or present in court as it deems fit, with a view to elucidating matters in controversy. Sub-rule (1)(b) permits oral examination of any person accompanying a party who is able to answer any material question relating to the suit. Sub-rule (2) extends the same powers to subsequent hearings. Sub-rule (3) permits the court to put questions suggested by either party.

Object — to elucidate, not to take evidence

The Privy Council in Manmohan v Mst Ramdei, AIR 1931 PC 175, expressed disapproval of a subordinate judge who had put a defendant into the witness box at the first hearing and allowed cross-examination on the whole case before any evidence had been taken. The Order X power, the Privy Council said, is intended to be used "only when the judge 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 of trial as prescribed in Order XVIII".

The same principle was reiterated by the Supreme Court in A Shanmugam v Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430: Order X Rule 2 enables the court, in its search for the truth, to go to the core of the matter and narrow down or even eliminate the controversy. The rule does not, however, contemplate examination on oath or cross-examination of the defendant before the plaintiff has concluded his evidence.

Evidentiary status of statements under Rule 2

A statement made under Rule 2 is part of the record and binds the party who makes it. The Patna High Court in Talat Falima Hassan v HH Nawab Syed Murtaza Ali, AIR 1997 Pat 120, treated such statements as for all practical purposes part of the pleadings. The statement is not, however, a substitute for evidence at trial; it is to be scrutinised in accordance with the evidence and read in context.

An admission in a Rule 2 statement is conclusive against the party making it (Rasheed Ahmad v Karima Khatoon, AIR 2002 All 217; Amrita Devi v Sripat Rai, AIR 1962 SC 947), but not admissible against other parties unless they have an opportunity to cross-examine on the statement (Dogar Mal v Pleader, AIR 1930 Lah 545). The distinction with a Rule 1 admission is important: a Rule 1 admission is conclusive without qualification; a Rule 2 statement is part of the record but liable to be reconsidered alongside other evidence and may be corrected on proof of mistake (Kailash v Rattan).

Adverse inference for non-examination

The Supreme Court in Adivekka v Hanamavva Kom Venkatesh, AIR 2007 SC 2204, held that adverse inference can be drawn against a party who fails to be examined under Order X Rule 2 where the circumstances surrounding the dispute remained unexplained. The case arose under the Indian Succession Act, 1925, where the execution of a will was in doubt, and the failure to lead the propounder through Order X examination weighed against the propounder.

After framing of issues

The Patna High Court in Baleshwar Singh v Shanti Kumari, AIR 2008 Pat 12, held that Order X Rule 2 is essentially for clarity at the pre-issue stage. Once issues are framed, the court should not ordinarily go back to a Rule 2 examination unless there are exceptional circumstances. If a court chooses to do so, it must record reasons; a non-speaking order recalling the parties for further examination after issues are framed is liable to be set aside.

Rule 3 — recording the substance

The substance of the examination must be reduced to writing by the judge and forms part of the record. The recording obligation is not formalistic — it is the textual basis on which any subsequent admission or use of the statement turns. A Rule 2 examination not reduced to writing has limited evidentiary value; the discipline is to record at the time of examination, not later.

Rule 4 — refusal or inability of pleader to answer

Rule 4(1) addresses the practical problem of a pleader who is unable or refuses to answer a material question. Where the court is of the opinion that the party ought to answer and is likely to be able to do so if interrogated in person, the court may postpone the hearing — to a date not later than seven days from the first hearing, after the 1999 amendment — and direct the party to appear in person on that day.

Sub-rule (2) supplies the consequence: if the party fails without lawful excuse to appear in person on the appointed day, the court may pronounce judgment against him or make such order as it thinks fit. The Supreme Court in Vikas Aggarwal v Anubha, AIR 2002 SC 2828, held that Order X is an enabling provision; the court may, in pursuit of justice, even strike off the defence on persistent default. The provision is interlocutory in nature; the court is not precluded from passing a different order at a subsequent stage and no bar of res judicata applies (Tara Devi v District Judge, Basti, AIR 2003 All 78).

The triggering condition

An order directing a party to appear in person under Rule 4 can be made only if the pleader has refused or is unable to answer a material question (Satu v Hanmantrao, (1899) ILR 23 Bom 318). Where the pleader has not expressed unwillingness or inability — for instance, where the pleader simply does not have the party present in court — the foundation for a Rule 4 order is absent. The Bombay High Court in Ron Son EH Pvt Ltd v New Bank of India Ltd, AIR 1989 Bom 32, held that a striking-off of defence is not sustainable where the pleader did not refuse to answer.

Remedy against a Rule 4 dismissal

There is a divergence of judicial opinion on the remedy where a suit is dismissed under Rule 4(2) for the plaintiff's failure to appear personally. The Madhya Pradesh High Court in Sewaram Udaji v Munna Moti, AIR 1959 MP 121, held that the dismissal is under Rule 4(2) and the remedy is appeal, not restoration under Order IX Rule 9. The Orissa High Court in Venkata Suryanarayana v Royal Chit Fund, AIR 1968 Ori 86, took the contrary view, treating the presence of counsel as appearance by the plaintiff and applying Rule 9. The Madhya Pradesh view is the more textually faithful reading.

Order X in commercial and special suits

The Commercial Courts Act, 2015, has not displaced Order X but has overlaid it with case-management discipline. In a commercial dispute of specified value, the case-management hearing under Order XV-A occurs after the Order X examination and the framing of issues; the court is expected to fix dates for filing affidavits of evidence, completing inspection, and pronouncing judgment within a defined timeline. The Order X examination remains the first opportunity for the court to learn which factual contentions are live and which are conceded — and it correspondingly shapes the timeline in the case-management order.

In family-law suits, the Family Court Act, 1984 imports Order X with appropriate adaptation, alongside the special discipline applicable to parties to suit under Order I when minors and persons of unsound mind are involved. The court is expected to attempt reconciliation under Section 9 of the Family Court Act, and the Order X examination — particularly the Rule 1A direction to opt for ADR — is read as part of that reconciliation duty. The Supreme Court's emphasis on conciliation under Section 23 of the Hindu Marriage Act, 1955, in Jagraj Singh v Bir Pal Kaur, AIR 2007 SC 2083, applies with force to the Order X stage of matrimonial proceedings.

The interlocking with Order XIV

Order X feeds directly into Order XIV. After the Order X examination, the court frames issues under Order XIV Rule 1, and Rule 1(5) (as amended in 1976) expressly requires the court to take into account the substance of the Order X examination when framing issues. The progression Order V → Order VIII → Order X → Order XIV → Order XV is the procedural backbone of the suit's pre-trial movement.

Distinguish — Order X from cognate provisions

Order X Rule 1 vs Order XII Rule 1. Rule 1 of Order X obtains admissions at the first hearing through court inquiry; Order XII deals with admissions in pleadings, by notice, and on judgment. Both relate to admissions but operate at different procedural points and to different effect.

Order X Rule 2 vs Order XVIII. Rule 2 elucidates the matters in controversy at the first hearing; Order XVIII covers the formal hearing of the suit and examination of witnesses. The Privy Council in Manmohan v Mst Ramdei warned against using Rule 2 to bypass Order XVIII.

Order X Rule 1A vs Section 89. Section 89 is the substantive ADR reform; Rule 1A is the procedural trigger. The two read together — Section 89 supplies the modes and the discretion to reformulate; Rule 1A makes the obligation to direct the parties to opt mandatory once admissions and denials have been recorded.

Order X Rule 4 vs Order IX Rule 12. Rule 4 deals with the consequences of a pleader's inability to answer; Order IX Rule 12 deals with the consequences of non-appearance by a party who has been ordered to appear in person under Order V Rule 3. The two converge but the trigger and form differ.

MCQ angle

1. First hearing test. The day the court applies its mind to the pleadings to understand the parties' contentions — not the day fixed for filing the written statement (Arjun Khiamal, Sudershan Devi).
2. Rule 1 vs Rule 2 admissions. Rule 1 admissions are conclusive; Rule 2 statements are part of the record and may be reconsidered or retracted on proof of mistake.
3. Rule 1A — mandatory ADR direction. The court "shall" direct the parties to opt for an ADR mode under Section 89 after recording admissions and denials — Salem-II's harmonious reading of "may" and "shall".
4. Rule 4 postponement. Up to seven days from the first hearing under the post-2002 amendment, after which the court may pronounce judgment against a defaulter.
5. Order X cannot supersede Order XVIII. The Privy Council in Manmohan set the limit — Rule 2 is for elucidation, not for evidence.

Order X is the procedural moment at which the court first speaks to the parties about the substance of the dispute. Used well, it narrows the controversy, refers suitable matters to ADR, and produces the textual record on which Order XIV will frame issues. Used poorly, it bypasses the discipline of Order XVIII and produces an incomplete trial. The chapter sits between the close of pleadings and the framing of issues, and its mastery is essential for any judicial officer who wishes to manage a docket. For broader context, return to the main Code of Civil Procedure hub.

Frequently asked questions

What is the meaning of 'first hearing' under Order X Rule 1 CPC?

The Code does not define the term, but the Supreme Court in Arjun Khiamal Makhijani v Jamnadas C Tuliani, (1989) 4 SCC 612, held that the first hearing is the day on which the court applies its mind and goes into the pleadings to understand the parties' contentions — not the day fixed for filing the written statement. Sudershan Devi v Sushila Devi, (1999) 8 SCC 86, refined the test: it is the date proposed for hearing, that is, the date proposed for applying the court's mind to determine the points in controversy and to frame issues.

Is the direction to opt for ADR under Order X Rule 1A mandatory?

Yes. Rule 1A uses the word 'shall'. The Supreme Court in Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344, harmonised the 'may' in Section 89 and 'shall' in Rule 1A by holding that 'may' in Section 89 governs only the reformulation of the terms of possible settlement and the reference, while 'shall' in Rule 1A makes it mandatory for the court — after recording admissions and denials — to direct the parties to opt for one of the modes of settlement specified in Section 89(1). The Court directed High Courts to frame rules under Part X covering the manner in which the option is to be made.

Can a court use Order X Rule 2 to examine a defendant on oath before the plaintiff's evidence?

No. The Privy Council in Manmohan v Mst Ramdei, AIR 1931 PC 175, expressly disapproved this practice. The power under Rule 2 is intended for elucidating the matters in controversy at the first hearing — it is not a substitute for the trial procedure under Order XVIII. The Supreme Court in A Shanmugam, (2012) 6 SCC 430, reiterated that Rule 2 is to narrow down or eliminate the controversy. Putting the defendant in the witness box for cross-examination on the whole case before any evidence has been taken supersedes Order XVIII and is impermissible.

What is the difference between an admission under Order X Rule 1 and a statement under Rule 2?

An admission under Rule 1 is conclusive against the party making it. A statement made under Rule 2 is part of the record and is binding on the party, but is liable to be considered alongside the other evidence and circumstances of the case. The Punjab and Haryana High Court in Kailash v Rattan, AIR 1974 P&H 38, held that if a mistake occurs in a Rule 2 statement, the party can point out the mistake and recall the admission made through such error — a flexibility not available under Rule 1.

Can the court strike off the defence for failure to comply with an Order X Rule 4 order?

Yes, in a serious case of persistent default. The Supreme Court in Vikas Aggarwal v Anubha, AIR 2002 SC 2828, upheld the striking-off of defence by the Delhi High Court where the husband, in a maintenance suit by the wife, repeatedly failed to appear in person despite Order X directions. Order X is enabling, and the court has the power under Rule 4(2) to pronounce judgment against the defaulting party or to make such order as it thinks fit — including striking off the defence. The remedy is, however, exceptional and requires the foundational condition that the pleader has refused or is unable to answer a material question.

Can the court go back to an Order X Rule 2 examination after issues have been framed?

Ordinarily no. The Patna High Court in Baleshwar Singh v Shanti Kumari, AIR 2008 Pat 12, held that Order X Rule 2 is essentially for clarity at the pre-issue stage so that issues may be correctly framed. Once issues are framed, the court should not return to Rule 2 except in exceptional circumstances, and even then must record reasons explaining why the trial procedure under Order XVIII is being departed from. A non-speaking order returning the suit to Rule 2 examination after issue-framing is liable to be set aside on revision.