ORDER X: Examination of
Parties by the Court
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 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.
Part in Red is taken from Bare Act as it is.
At first hearing of the suit, if facts alleged in the written pleading of one party are not admitted or denied by other party in written statement, then the Judge has to ascertain from the latter whether he admits or denies them and to record such admissions or denials. The statement given in this procedure in front of Judge is called as "oral pleading".
This is necessary when the defendant has not filed a written statement. As under the Code the defendant is not bound to file written statement unless expressly ordered to do so by the court.
When some new facts are alleged in the written statement, in which case the issues cannot be settled unless it is ascertained whether the plaintiff admits or denies them. It is also necessary when the written pleadings are incomplete or inaccurate.
At first the pleadings were oral. The parties appeared in open court and a viva voce altercation took place before the Judge, whose duty was to superintend or “moderate” the oral contentions. The alternate allegations were so managed as, at length, to arrive at some specific point or matter affirmed on one side and denied on the other, which was agreed to be the question for decision. The parties were then said to be “at issue”, and the trial commenced. Only one issue was allowed to be raised.
This duty is recognized by statute by the enactment of a provision that, at the first hearing, the court shall ascertain from each party whether he admits or denies such allegations of facts as are not expressly or by necessary implication, admitted or denied by him, and of a further provision under which the court is empowered to examine the parties before settlement of issues to find out “what the actual controversy between them is?”. When the question is whether a party should be held bound by an admission in his pleadings, it is the duty of the court to look to the pleadings as a whole and not to dissect a fact out of the pleadings.
Judgment:
1) Chimawa v. Gangawa, 31 Bom. L. R. 1118, 1929 (Bom.) : The Bombay High Court has, however, gone further and held that a court has no power to call for such a written statement from the plaintiff and if it requires the plaintiff’s reply to any pleas of the defendant it can have recourse to O. 10, R. 1 alone.
2) Mohamed Yahya v. Raham Ali, 117 I. C. 813; 1929 (Lah.) 16j: These statements are in the nature of supplementary pleadings and no plea inconsistent with them can be raised at a later stage except by way of amendment of pleadings.
3) Firm of Suraj Singh v. Sardar, 116, I. C. 884: Issues can be framed on such supplementary pleadings and the trial is not vitiated if no formal amendment is made in the written pleadings in the light of oral pleadings.
4) Jagannath Upadhya v. Amrendra Nath Banerjee, 1957 Cal. 479: A case made and stated in the plaint and not denied in the written statement is to be taken as admitted and being admitted it need not be proved.
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