First hearing

After a suit is instituted with the plaint and a written statement is given by the defendant there comes a stage called first hearing. But what does the first hearing comprise of? What exactly happens when summons which were served to both parties appear to the court? All these are important questions and it is equally important to understand its object and at the same time why issues are so important.

Basically after the presentation of plaint by the plaintiff and filing of written statement by the defendant, there arrives a stage called first hearing. Order 14 of the Code of Civil Procedure, 1908 deals with the first hearing. The word first hearing as such is no where defined in the Code, but the literal meaning of the term is the day on which the court goes into the pleadings of parties in order to understand their contentions. While Order 10 of the Code enjoins the court to examine parties with a view to ascertain matters in controversy in the suit. It has been held by the Supreme Court that First hearing is the day on which the court applies its mind to the case either for framing issues or for taking evidence.[1]

The Order X Rule 1 provides that the court shall, at the first hearing of the suit, ascertain from each party or his pleader whether he admits or denies such allegations or facts as are made in the plaint or in the written statement, if any, of the opposite party. After recording admissions and denials, the court shall direct the parties to the suit to settle out of court through conciliation, arbitration, mediation or Lok Adalat. If there is no settlement, the case will again be referred to the court. Rule 2 further provides that for oral examination of parties to the suit with a view to elucidating matters in controversy in the suit. The court, thus, ascertain with precision the propositions of law or fact on which the parties are at variance and on such questions issues are required to be framed. The main purpose behind these rules is to understand and inform the parties about their real dispute so that the area of conflict can be dealt with between the parties at the same time, later on if any party come to realise about these issues, it would not be surprise to them.

Therefore, on the first hearing, the main task of framing of issues is done. Issue means a point in question or some important subject of discussion. Issues are points of contradictory averments made by the parties and decide by the court. When one fact is asserted by the party and the same is denied by other, that is oppositions, such per se facts, which will be called material propositions will constitute issues. Order X Rule 1(2) and 1(3) provides that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject-matter of a distinct issue.

Basically the framing of issues requires some conditions and material which is inclusive of mainly three things. Firstly, the allegations made on oath by the parties, or by any persons present on their behalf, or statements made by the pleaders appearing for the parties. Secondly, the allegations made in pleading or in answers to interrogatories and thirdly, documents produced by the parties.[2] Therefore their important has been realised appropriately in leading judgement in State of Gujarat v. Jaipalsingh Jaswantsingh Engineers and Contractors[3] wherein it was stated that “such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence if he so desires to bring home the defence pleaded, and in the third instance, enlighten the trail court to test and appreciate the same in proper perspective to enable it to reach a just decision. It is hardly required to be told that issues are backbone of a suit. They are also the lamp-post which enlightens the parties to the proceedings, the trial court and even the appellate court- as to what is the controversy, what is evidence and where the way to truth and justice lies.”

Therefore the framing of issues is the duty of the court since only the court can frame the issues in a suit. They are decided by the Presiding Officer of the court that is the Judge. At the same time, parties and their pleaders thereof must also assist the court in framing the issues wherever required. While issues are supposed to be clear and specific, vague and evasive issues creates irregularities in the administration of justice. Order X also provides that the court may examine witnesses or inspect documents before framing issues, to amend the issues or to frame additional issues or to strike out issues that may appear to the court to be wrongly framed.

But in circumstances wherein there is the omission of court to framing of issues, such is not considered fatal to the suit. But in case, such omissions leads to affect the disposal of suits on merits then the case must be remanded to the trail court for fresh trial. While on the other hand, it was held that where the parties knew that certain point of proposition would have been an issue and yet its disposition would not be fatal to the suit, such omission of court on framing issue is acceptable provided it has caused no prejudice or substantial injustice.[4] Order 15 deals with various situations where a suit can be disposed off on the first hearing itself. Therefore, issues are extremely important for a proper proceeding of a suit and right decision of the case[5] and omission thereto can be caused, bearing valid reasons and while if framed properly, all issue must be normally decided at one and same time.[6] This constitutes all we need to know about first hearing.

[1] Arjun Khaimal Makhijani v. Jamnadas C. Tuliani (1989) 4 SCC 612

[2] Rule 1(5) and 3

[3] (1994) 35 (1) Guj LR 258

[4] Keval Krishan v. Dina Nath (1992) 2 SCC 51

[5] Pandurang Laxman v. Kaluram Bahiru AIR 1956 Bom 254

[6] Lufthansa General Airlines v Vij sales Corporation (1998) 8 SCC 623

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