A guest post by Ambanshu Sahni, Advocate practising at the Punjab & Haryana High Court and the Supreme Court. First published at https://lawsofindiaexplained.blogspot.com
Indian Judicial system is facing a humongous problem of backlog of cases. The pendency of cases results in delays and slow movement of wheels of justice.
Today over 4.7 Crore cases are pending in India.
While the delay in criminal trials impinges upon the Right to Life of the accused and the victim alike, delay in civil matters results in frustrating the parties, lowering the prospect of the country as a business-friendly destination.
The delay in disposal of cases also creates general societal problems as the parties’ resort to violence over petty issues.
This column focuses on the pre-trial powers of a civil court under the Civil Procedure Code, 1908 (“CPC”). If these powers are exercised in an efficient manner, it can help the courts to reduce time of litigation.
The exercise of these powers will also streamline the process of trial.
Institution of a Suit
A civil court under the CPC is moved by filing of a Plaint. The Courts from the inception of the suit have power to control the pace at which the suit moves forward. There are certain essential ingredients of a plaint. Order 7 Rule 1 inter alia states that the Plaint should disclose cause of action and the court in which the plaint is filed possesses Jurisdiction to try the suit. The Court before admitting the Plaint under Order 7 Rule 9 CPC has to satisfy itself that the plaint contains the requisite ingredients. If any of the requirements mentioned in the Order 7 Rule 1 have not been complied with, the court may either Reject the Plaint or if it finds that it does not have the jurisdiction the court may direct the plaintiff to file it in the proper court.
Issuance of Summons
However, if the court is satisfied that the plaint discloses the cause of action and it has jurisdiction to try the case the court may issue summons to the defendant. It is here that the court’s skill and recognition of its own powers becomes necessary because once both the parties are before the court the litigation turns sideways and practical experience says that the suit is bombarded with multiple applications which consumes the court’s precious time.
The CPC has given enough power to the judges to remove chaff from the grain and streamline the litigation process. One such power at the stage of summons is issuing summons for personal attendance of the parties at the time of hearing. The Order 5 Rule 3 states that “where the court sees reason to require the Personal Appearance of the defendant, the summons shall order him to appear in person in court…”. It is important to note that many times the facts of the case are convoluted and even the pleaders are unable to explain the matters with clarity. The CPC empowers the Courts to summon the party in person. This helps the court to get clarity regarding the facts of the case. The parties appearing in person can help the court in finding out the real issues of controversy. In fact, the Courts have power to issue summons for final disposal of suit at this stage itself. Under CPC, court of small causes can issue summons for final disposal of suit only. Thus it is clear that the inclination of the legislature is towards quick disposal of cases.
Appearance/Non-Appearance of Parties
Once the summons is issued a date is fixed for the parties to appear. It is on this date that the parties appear before the court for the first time. Order 9 deals with appearance and non-appearance of the parties. Order 9 envisages many situations where the court can put an end to litigation for a non-serious litigant. Order 9 Rule 3, for example, empowers the court to dismiss the suit if neither party appears on the date fixed for hearing.
When Plaintiff does not appear
Further if the summons are returned unserved, the court may if the plaintiff fails to apply for fresh summons within seven days from the date of return dismiss the suit. Another situation envisaged by the CPC is where on the date fixed for hearing only the defendant appears and the plaintiff fails to show up. The courts in such a situation shall* (read as may) dismiss the suit of the plaintiff.
These provisions make it amply clear that a court is empowered to take strict action of dismissal of suit against an errant Plaintiff. Of course, the Plaintiff has the remedy of getting the suit restored or setting aside the dismissal after assigning a good cause for such non-appearance.
When Defendant does not appear
Similarly, if the defendant does not appear on date fixed for hearing the court may proceed ex parte. The court may even decree a suit ex parte.
Effect of Non-appearance of the party when ordered by the Court
The code also envisages an interesting situation where the pleader of the party is present still the court may exercise all the above-mentioned powers. As mentioned above the court may summon a party to appear in person. If any party does not comply with the order of the court to appear in person, then his suit may be dismissed (in case of plaintiff) or he may be proceeded ex parte (in case of defendant). Thus, it is clear that at the very first appearance of the parties the court may take the parties to task if they are non-serious. Thus the court can ensure there are no unnecessary delays in the proceedings.
Examination of the parties by the Court
Another provision of the CPC which remains underutilized by the judges is power to examine the parties. Order 10 may be used to guide the pace of the litigation . The pleadings of the suit are complete at this stage of the proceedings. However, due to ambiguous drafting – the points of controversy between the parties are not clear to the court. It is here the court’s power to examine the parties and their pleaders may come in handy.
Order 10 Rule 2 provides the courts with ample power to examine any person on the first hearing of the suit. This helps the court to understand the matters in controversy between the parties. The examination conducted by the court is reduced to writing and it forms part of the record. This examination becomes a guiding light at all the stages of trial. Proper exercise of the powers given under this order may allow the court to understand the points of contention between the parties. It will help the court to frame the issues in a better manner. Once the issues are framed with clarity the leading of evidence becomes easy. This reduces the litigation time considerably.
It may be noted that the examination of the parties under Order 10 Rule 2 is not on oath. The true purpose of the provision is to get clarity regarding the matters in controversy.
Having said that, there is an important caveat : While conducting an examination under order 10 CPC, the Court should not resort to cross examination of the party concerned the Hon’ble Supreme Court has in M/S.Kapil Corepacks Pvt.Ltd.& orthers vs Harbans Lal (D) Thr.Lrs ( arising out of SLP (C) No.19894/2009):
“The object of the examination under Order 10 Rule 2 of the Code is to identify the matters in controversy and not to prove or disprove the matters in controversy, nor to seek admissions, nor to decide the rights or obligations of parties. If the court had merely asked the second appellant whether he had executed the agreement/receipt or not, by showing him the document (by marking the document for purposes of identification only and not as an exhibit), it might have been possible to justify it as examination under Order 10 Rule 2 read with Order 12 Rule 3A of the Code. But any attempt by the Court, to either to prove or disprove a document or to cross-examine a party by adopting the stratagem of covering portions of a document used by cross-examining counsel, are clearly outside the scope of an examination under Order 10 Rule 2 of the Code and the power to call upon a party to admit any document under Order 12 Rule 3A of the Code…”(emphasis supplied)“
— Kapil Corepacks (Supra)
Further, the provisions under Order 10 are not bare provisions; the courts are provided with ample teeth to ensure compliance.
If a person or his pleader are unable to answer a material question regarding the suit the court may postpone the matter for Seven days. In case the party or his pleader does not show up on the date so fixed the court may pronounce a Judgement against him.
The powers of the court to examine the parties are not confined to the above mentioned order. The courts may examine the parties before framing of issues. Thus, these powers provide the courts with clarity about the issues. Thus ensuring effective and time bound disposal of cases.
“”From the above discussion it is clear that the courts are equipped to govern the pace of the trial which in turn ensures speedy justice to the parties. A proper exercise of the powers mentioned above will ensure that the issues of controversy are quickly identified by the court. The provisions ensure that non serious parties are taken to task at a very early stage of the proceedings. A quick and effective Judiciary will not only reduce the societal friction but it will go a long way in promoting India as a business-friendly destination.””
 Section 26 CPC
 Order 7 Rule 1 CPC
 Order 7 Rule 11 CPC
 Order 7 Rule 10 CPC
 Order 5 Rule 5 CPC
 Order 9 Rule 5 CPC
 Order 9 Rule 8 CPC
 Order 9 Rule 6 CPC
 Order 9 Rule 12 CPC
 Order 10 Rule 3 CPC
(2010) 8 SCC 452
 Order 10 Rule 4 CPC
 Order 14 Rule 4 CPC
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