Pankaj Mithal, J. - Heard Sri P.N. Srivastava, learned counsel for the petitioners and Sri Ajay Kumar Singh, learned counsel appearing for the plaintiff-respondent.
2. The petitioners have impugned the order dated 3.09.2016 passed by the court of first instance in Original Suit No.52 of 2015 by which the application purported to have been filed under Order 10, Rule 2 C.P.C. has been rejected.
3. The facts of the case reveal that the plaintiff-respondent filed a suit for declaring the sale deed dated 15.12.2014 to be void and for a decree of permanent injunction in respect of the suit property. In the said suit, after parties have exchanged pleadings and the matter was fixed for framing of issues, the petitioners moved an application on 22.08.2016 under Order 10, Rule 2 C.P.C. contending that the plaint is very vague and, therefore, Saurabh Agarwal, Managing Director of the plaintiff-respondent be summoned for examination to get elucidated the facts stated therein.
4. The aforesaid application has been rejected by the impugned order dated 3.09.2016.
5. Sri Ajay Kumar Singh, learned counsel for the petitioner has raised a preliminary objection that the impugned order is revisable under Section 115 C.P.C. and the application under Order 10, Rule 2 C.P.C. itself was not maintainable.
6. The purpose of order 10 C.P.C. is to authorise the court to examine the parties to ascertain if they admit or deny the allegations of facts as contained in the pleadings and to elucidate matters in controversy. It is not an examination on oath but mere oral statement.
7. The examination or refusal to examine the parties under the aforesaid provision does not decide any substantive rights of the parties and does not even terminates any stage of the proceedings so as to make the order a case decided for the purposes of seeking its revision. The order impugned is rather purely interlocutory in nature and is not a case decided within the meaning of Section 115 C.P.C.
8. In view of the above, is not a revisable order and is open for judicial review, if necessary, by this Court in exercise of power of superintendence under Article 227 of the Constitution .
9. Order 10, Rule 2 C.P.C, no doubt, does not envisages filing of any application by either of the parties but the filing of the application for drawing the attention of the court to the said provision is not barred and does not cause any prejudice to the parties or affects the power of the court to examine the parties under Order 10, Rule 2 C.P.C.
10. In such a situation filing of the application even though not necessary for inviting the attention of the court to the provisions of Order 10, Rule 2 C.P.C.?cannot be said to be an abuse of the process and to hold that such an application is not maintainable.
11. Sri Srivastava has argued that the provisions of Order 10, Rule 2 C.P.C. are mandatory in nature as the word ''shall'' has been used therein and, therefore, his application was not liable to be rejected.
12. It is well acknowledged that at times the use of the word ''shall'' is read as ''may'', more particularly when the Statute does not provide for any penal consequence.
13. The provisions of Order 10, Rule 2 do not provide for any penal consequences if the Court ignores the mandate of getting the matters in controversy in the suit elucidated by orally examining either of the parties appearing in person or present in Court. In this view of the matter the word ''shall'' used in sub Rule (1) of Rule 2 Order 10 C.P.C. is obviously discretionary in nature and not mandatory despite the use of word ''shall'' in sub-rule (1) of Rule 2 Order 10 C.P.C.
14. A plain and simple reading of the provisions of the Order 10 Rules 2(1) and 2(3) C.P.C. reveals that the word ''shall'' has been used in sub Rule (1) whereas the word ''may'' has been used in sub Rule (3).?
15. The use of word ''may'' in sub-Rule (3) further confirms that the word ''shall'' used in sub-Rule (1) is not intended to convey that the provision is of mandatory nature.
16. Apart from the above, the object of examination under Order 10, Rule 2 C.P.C. is very limited i.e. to elucidate and identify the matter in controversy. It is not a provision for recording evidence so as to prove or disprove any fact in controversy. The matter in controversy can be ascertained by the Court on the basis of the pleadings and the material on record and the Court may not consider it necessary to examine the parties or the person appearing in person or present in Court for the purpose of narrowing down the issues in controversy.
17. In such a situation the provisions of Order 10, Rule 2 C.P.C. cannot be held to be mandatory so as to put the Court under obligation to orally examine the party in each and every case.
18. Thus, if the court below has refused to exercise its discretion to examine the party orally such a discretion is not liable to be interfered with specially in exercise of extra ordinary supervisory power which is to be used sparingly and in special circumstances, not for correcting the mistakes of fact and law but to check miscarriage of justice only.
19. The order impugned is always amenable to challenge after decision of the suit, if occasion arises, by taking a ground in appeal.
20. In view of he aforesaid facts and circumstances, I do not consider it to be a fit case for any indulgence under the supervisory jurisdiction.
21. The petition is dismissed.
