R.2. ORAL EXAMINATION Of PARTY OR COMPANION Of PARTY –

• At the first hearing of the suit, the Court –
• 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 deems fit; and
• May orally examine any person, able 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.
• 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 examination under this rule questions suggested by either party The bare reading of the aforesaid provision indicate that by putting material question to the parties or any person accompanying either party or his/her pleader relating to the suit, the Court endeavour is to obtain answer to the material question related to the suit. Order 10 Rule 2 of the code is intended to be used by the Court generously at the time of framing of issues or before the issues are framed because form that examination of parties, if any material question arises the Court may frame such issues required to be tried during the trial.

The oral examination of party as provided under Order 10 Rule 2 of the Code cannot be a substitute for regular examination on oath or as a tool to supersede the trial as provided under Order 18 of the Code. The statements made during the examination under the aforesaid provision are not intended to supersede evidence, but they are of great value and as admissions, conclusive against the party making them is liable to be considered alongwith the other evidence and circumstances of the case.

The aforesaid provision of law was elaborately examined by the Privy Counsel in the case of Manmohan Das Vs. Mt. Ramdei – AIR 1931 Privy Counsel 175 wherein Lord Macmillan held as “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.”

In the case of Arunagiri Goundan Vs. Vasantharoya Koundan – AIR 1949 Madras 707, the Division Bench of Madras High Court while examining the provision of Order 10 Rule 2 of the Code held as “At the outset it must be pointed out that this does not provide for 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 trial.”

The power under Order 10 Rule 2 cannot be converted into a process of selective cross examination or calling any party to admit a document before an opportunity to put forth its case on trial. The power of Court to ascertain the real controversy by oral examining the party is different from the power of the Court exercised under Section 165 and 167 of the Indian Evidence Act, 1872. The Hon’ble Supreme Court while examining the scope and ambit of Order 10 Rule 2 of the Code in the case of M/s Kapil Corepacks Pvt. Ltd. Vs. Shri Harbans Lal (since deceased) Through LRs reported as (2010) 8 SCC 452 held that “the power of identify the matters is controversy by examination of parties at the pre-trial stage under Oder 10 Rule 2, is completely different from the power exercised by the Court under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code of recall and examine any witness. The Court’s anxiety to do justice by speeding up the process of the suit should not itself lead to injustice.”

Very often issue arises regarding the validity and correctness of invoking proceeding under Section 340 Cr.P.C. in regard to the answer given by a party in an oral examination by the Court under Order 10 Rule 2 of the Code.

In the case of M/s Kapil Corepacks Pvt. Ltd. (Supra) the Hon’ble Supreme Court held that a party giving an answer in an examination under Order 10 Rule 2 is neither giving evidence nor giving an affidavit and therefore Section 340 of Cr. P.C. will not apply with reference to any statement under Order 10 Rule 2 of the Code. Therefore, initiation of proceedings under Section 340 Cr.P.C. read with Section 195 IPC in regard to an answer to a question put under Order 10 Rule 2 of Code is without jurisdiction as the answers to an examination under Order 10 Rule 2 of the Code are not on oath and therefore the party is not deposing as a witness on oath while giving answers under Order 10 Rule 2 of the Code.

Under no circumstances, a party giving an answer to a question asked Order 10 Rule 2 of the Code when not under oath and when not being examined as a witness, can attract Section 195 IPC and Section 340 of Cr. P.C.

It is thus clear that under Order 10 Rule 2 of the Code empowers the Court to orally examine the parties to identify the bone of contention i.e. the real controversy between the parties in the suit.