First hearing, framing of issues, discovery, admissions, affidavits and adjournments
Civil Procedure Code and Limitation Act · Unit III · Topic 15 of 27 · 8 min read
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1. The first hearing and examination of parties (Order X)
The “first hearing” is the day on which the court first applies its mind to the case after the written statement, ordinarily the day fixed for settlement of issues. At that hearing:
- the court must ascertain from each party or his pleader whether he admits or denies the allegations of fact in the other side's pleading that are not already expressly or impliedly admitted or denied, and record the admissions and denials (rule 1);
- after recording them, the court directs the parties to opt for one of the modes of settlement under section 89 (rule 1A; see the ADR note in the Semester 4 materials);
- the court may orally examine any party, or any person accompanying a party who can answer material questions (rule 2), and the substance is reduced to writing (rule 3);
- if a pleader cannot or will not answer and the party refuses to appear in person, the court may pronounce judgment against the party or make such order as it thinks fit (rule 4).
2. Issues (Order XIV)
Rule 1 defines the concept. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those which the plaintiff must allege to show a right to sue, or the defendant must allege to make out his defence. Each such proposition forms a distinct issue (rule 1(3)). Issues are of two kinds: issues of fact and issues of law (rule 1(4)). Textbooks add a third, mixed issues of law and fact, such as limitation where the starting date is disputed.
Framing. At the first hearing the court, after reading the pleadings and examining the parties under Order X rule 2, frames the issues on which the right decision appears to depend (rule 1(5)). No issues are needed if the defendant makes no defence (rule 1(6)). The materials are the allegations on oath, the pleadings and answers to interrogatories, and the contents of documents produced (rule 3). If a person or document is needed before issues can be framed correctly, the court may adjourn for not more than seven days (rule 4). Issues may be amended, added or struck out at any time before decree (rule 5), and parties may agree to state a question in the form of an issue (rule 6).
Preliminary issues. The general rule is that the court must pronounce judgment on all issues (rule 2(1)), so that an appellate court does not have to remand. An issue of law may be tried first only if it relates to the jurisdiction of the court or a bar to the suit created by law (rule 2(2)). In Ramesh B. Desai v. Bipin Vadilal Mehta, 2006 INSC 415, (2006) 5 SCC 638, the Court held that a plea of limitation that depends on disputed facts is a mixed question and cannot be decided as a preliminary issue.
Effect of a wrong or missing issue. A defect in framing issues does not vitiate the trial if the parties knew what was in dispute and led evidence on it. In Nagubai Ammal v. B. Shama Rao, 1956 INSC 29, AIR 1956 SC 593, the Court held that where parties went to trial fully aware of the matter in controversy and produced evidence on it, the absence of a specific issue causes no prejudice.
3. Discovery, inspection and production (Orders XI and XIII)
Discovery compels a party to disclose facts or documents in his knowledge or possession that the other side needs. Section 30 gives the court the general power; Order XI gives the procedure.
- Interrogatories (rules 1 to 11). With leave of the court, a party may deliver written questions to the other side relating to any matter in question. They must be answered on affidavit. Interrogatories that are unreasonable, vexatious, prolix, oppressive, unnecessary or scandalous may be set aside or struck out (rule 7).
- Discovery of documents (rules 12 and 13). A party may apply for an order directing the other to disclose on oath the documents in his possession or power relating to the suit. The court refuses where discovery is not necessary for disposing fairly of the suit or for saving costs.
- Production and inspection (rules 14 to 19). The court may order production of documents at any stage, and a party may inspect documents referred to in the other side's pleadings or affidavits.
- Sanction (rule 21). A plaintiff who fails to comply is liable to have the suit dismissed for want of prosecution, and is then barred from a fresh suit on the same cause; a defendant may have his defence struck out. The order requires notice and hearing, and is appealable under Order XLIII rule 1(f).
Order XIII deals with documents at trial. Original documents whose copies were filed with the plaint or written statement must be produced on or before the settlement of issues (rule 1). The court may reject irrelevant or inadmissible documents at any stage, recording the grounds (rule 3). Admitted documents are endorsed (rule 4), and a document may be impounded where it appears forged or insufficiently stamped (rule 8).
4. Admissions (Order XII)
An admission dispenses with proof. Order XII provides four routes:
- Notice of admission of case (rule 1): a party may admit the whole or part of the other's case by pleading or in writing.
- Notice to admit documents (rules 2 and 2A): a party may call on the other to admit a document within seven days. A document not specifically denied is deemed admitted, except against a person under disability, and unreasonable refusal attracts costs.
- Notice to admit facts (rule 4): given not later than nine days before the hearing; an admission so made binds only for that suit.
- Judgment on admissions (rule 6): where admissions of fact have been made in pleadings or otherwise, orally or in writing, the court may at any stage, on application or of its own motion, give judgment on them without waiting for the other questions. A decree follows bearing the date of the judgment.
In Uttam Singh Duggal & Co. v. United Bank of India, 2000 INSC 380, (2000) 7 SCC 120, the Court said the object of rule 6 is to enable a party to obtain a speedy judgment to the extent of the other side's admission, and that admissions may be gathered from the pleadings, correspondence or other material. The power is discretionary. In Karam Kapahi v. Lal Chand Public Charitable Trust, 2010 INSC 200, (2010) 4 SCC 753, the Court held that the admission must be clear and unequivocal, and that rule 6 may be used on admissions found in the pleadings of the other side read as a whole.
5. Affidavits (Order XIX)
An affidavit is a written statement of facts sworn before a person authorised to administer an oath (section 139). The court may order any particular fact to be proved by affidavit, or the affidavit of a witness to be read at the hearing, for sufficient reason (rule 1). On any application evidence may be given by affidavit, but the court may order the deponent to attend for cross-examination (rule 2). Affidavits must be confined to facts within the deponent's own knowledge, except on interlocutory applications, where statements of belief are allowed if the grounds are stated (rule 3(1)). Hearsay and argument in an affidavit are at the cost of the party filing it (rule 3(2)). Since 2002, examination-in-chief in every case is by affidavit (Order XVIII rule 4).
6. Adjournments (Order XVII)
The court may grant time and adjourn the hearing if sufficient cause is shown, for reasons recorded in writing, but not more than three times to a party during the hearing (rule 1(1)). The proviso to rule 1(2) adds: once evidence has begun, the hearing continues from day to day; no adjournment at a party's request unless the circumstances are beyond his control; a pleader's engagement in another court is no ground; and the court must award costs of the adjournment, or higher costs. If a party fails to appear on the adjourned day, the court may dispose of the suit under Order IX, or, where his evidence has largely been recorded, proceed as if he were present (rule 2 and Explanation). If a party given time fails to produce evidence, the court may decide the suit forthwith (rule 3).
In Salem Advocate Bar Association v. Union of India, 2005 INSC 324, (2005) 6 SCC 344, the Court upheld the three-adjournment limit but read it as not absolute: in circumstances beyond a party's control, such as sudden illness, a further adjournment may be given, since the object is to prevent abuse, not to defeat justice.
How this is examined
“Explain the kinds of issues and state the provisions of CPC relating to the framing of issues” (January 2026) and “Kinds of issues” (February 2025) are answered from section 2, with Order XIV rules 1 to 6 and Nagubai Ammal. Short notes on “Affidavit” and “Admissions” (June 2025) and “Adjournment of case” (February 2025) are answered from sections 4 to 6. Discovery is set less often but appears in older papers as a short note.
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