2010 Supreme(SC) 671

2010 (6) Supreme 225
SUPREME COURT OF INDIA
R V Raveendran and H L Gokhale, JJ.
M/s. Kapil Corepacks Pvt.Ltd. & Ors. — Appellants
versus
Shri Harbans Lal (since deceased) Through Lrs. — Respondents
Civil Appeal No 6207 of 2010
[Arising out of SLP (C) No.19894/2009]
Decided on : 3-8-2010

IMPORTANT POINTS
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 outside the scope of an examination under Order X, rule 2 or Order XII, rule 3A.
The court’s anxiety to do justice by speeding up the process of the suit should not itself lead to injustice.
A party giving an answer to a question put under Order X, rule 2, CPC cannot attract section 195 of IPC, and section 195(1)(b) and section 340 of Cr.P.C.

Headnote:(a) Code of Civil Procedure, 1908 – Order X, rules 1 and 2 – Examination under Order 10 Rule 1 of the Code will not be necessary where the pleadings of each party have been fully and clearly traversed by the other party – On the other hand, rule 2 need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit – Under Rule 1 the court can examine only the parties and their advocates, that too at the ‘first hearing’ – On the other hand, under Rule 2 court can examine any person accompanying either party or his pleader at any hearing – Power under Rule 2 cannot be converted into a process of selective cross-examination by the court, before the party has an opportunity to put forth his case at the trial. (Paras 10 and 11)

        AIR 1931 PC 175 – Relied upon

        AIR 1949 Madras 707 – Cited with approval

        (b) Contemplation of admissions – Admissions are usually contemplated in 6 ways – (i) in the pleadings, express or constructive under Order VIII, rule 5 – (ii) during examination of a party by the court under Order X, rule 1 – (iii) in answers to interrogatories under Order XI, rule 8 – (iv) in response to notice to admit facts under Order XII, rule 4 – (v) in any evidence or in an affidavit, on oath; and – (vi) when any party voluntarily comes forward during the pendency of a suit or proceedings to make an admission. (Para 12)

        (c) Code of Civil Procedure, 1908 – Order XII, rule 3A and Order X, rule 2 – Order XII, rule 3A and not Order X, rule 2 empowers the court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document – However the powers under both these provisions can be combined to call upon a party to admit any document when a party is being examined under Order X, rule 2 – But the court cannot cross-examine a party with reference to a document. (Para 14)

        (d) Code of Civil Procedure, 1908 – Order X, rule 2 – Its scope is limited to identifying the matters in controversy and not to adjudicate upon the matters in controversy. (Para 16)

        AIR 1984 Raj. 113; AIR 1962 All. 111; AIR 2005 Del. 319; 150 (2008) DLT 281 – Distinguished

        (e) Code of Civil Procedure, 1908 – Order X, rule 2 and Order XII, rule 3A – 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 outside the scope of an examination under Order X, rule 2 or Order XII, rule 3A. (Para 17)

        (f) Judicial Review – The court’s anxiety to do justice by speeding up the process of the suit should not itself lead to injustice. (Para 20)

        (g) Code of Criminal Procedure, 1973 – Section 340 and 195(1)(b) r/w section 195 IPC – Power u/s 340 r/w section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence – A party giving an answer to a question put under Order X, rule 2, CPC cannot attract section 195 of IPC, and section 195(1)(b) and section 340 of Cr.P.C. (Para 20)

        2009 (108) DRJ 317; 2001 (9) SCC 742 – Distinguished

       Facts of the case:

        1. Late Harbans Lal filed a suit against the appellants on 5.9.2006, for recovery of Rs. 66 lakhs. He alleged that second appellant and his brother late Sohan Lal Dua on behalf of the first appellant, had executed an Agreement/Receipt dated 7.9.2003 agreeing to sell him an industrial property for a consideration of Rs. 2,02,41,600/- and had received a sum of Rs. 33 lakhs made up of Rs. 9 lakhs by cheque and Rs. 24 lakhs in cash towards the said agreement. He further alleged that the appellants were unwilling to convey the property and failed to produce the documents necessary to satisfy him about their title to the property; and that therefore in terms of the agreement, he was suing for refund of double the amount advanced by him.

        2. The appellants filed a criminal complaint dated 23.2.2007 against Harbans Lal and certain others alleging that the purported signatures of second appellant and late Sohanlal Dua on the said agreement/receipt were forged and that they had not executed any such agreement/receipt. They also denied having received Rs.24 lakhs.

        3. The appellants filed an application under Section 151 of the Code for referring the agreement/receipt to a hand writing expert or a Government Forensic Laboratory for examination of the signatures therein and for keeping the said document in safe custody.

        4. Permission for referring the document to hand-writing expert was refused.

        5. Single Judge of the High Court recorded statement of the appellants u/Order X of the CPC. Appeal thereagainst was dismissed.

       Findings of the Court:

        1. The courts below committed an obvious error in equating admission of a signature which is claimed to be a clever forgery, as an admission of execution of the agreement/receipt and the contents thereof.

        2. The decision of the court to consider 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 the Code is ill-conceived and wholly without jurisdiction.

       Result : Appal allowed.