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First hearing


Introduction

The first hearing is nowhere defined in the Code of Civil Procedure under the Code of Civil procedure, the examination of parties by the court towards Order 10 of CPC. The very first stage in the suit is the first hearing. It states about the issues and originates by complaining, filing plaint in order to understand the court their controversies. Order 10 is the part of the first hearing, the method of the court is set in motion by the representation of the court. Basically, after a suit is established with the plaint and a written statement is given by the defendant there arrives a stage called first hearing. The first hearing comes by order 14 of the Code of civil procedure,1908. While Order 10 of the Code orders the court to examine parties with a view to determining matters in controversy in the suit. It has been upheld by the Supreme Court that First hearing is the day on which the court implements its judgment to the case either to formulate issues or for taking evidence.


Meaning

The literal meaning of the term first hearing is the initial day on which the court goes into the pleadings of parties in order to understand their controversies or disputes arising between the petitioner and defendant. The second stage of the hearing is by the defendant to file a written statement, the third stage is to frame and settle the issue and the day on which issue is framed is the first hearing in the suit. The case on which no issues need to be framed in such cases the first day would be the day on which trial starts. For example, in small cause suit, the petition filed.

In the case of Shiraj Ahmed Vs. Prem Nath Supreme court passed the judgement that the first hearing of the suit under the suit is generally understood to be the date on which the court proposes to apply its mind to the contention in the suit of pleading by the parties and the documents filed by them for the purpose of evaluating issues to be decided in the suit.

Thus for the first time, the date of the case is called out for hearing and really gone into and not the day when the date was fixed for hearing but was not good for framing the issues to be decided by the court itself.


Objective

Below are some important objectives and changes made in the act of code :

  • With regards to Costs – Section 35 of the Code deals with the verification of pleadings which are ordered by the Actsthe now provides charges for verification of pleadings before it can be relied upon as evidence, something which was not in place previously. All pleadings have to be verified by evincing affidavits which have to be signed by the party, or one of the parties to the proceedings or any person who is acquainted with the facts of the case and authorized by such parties. The same is applied while amending of pleadings.

  • The court in a suit commands the quantum of costs and it confers discretionary powers on the Court. The Act instead provides judgment debtor for a general rule concerning payment of costs. The Courts are entitled to the general rule provided they lay down the reasons for the same in writing.

  • System for disclosure, discovery and inspection of documents: The Code laid down that the inspection of facts of the suits is to be done through interrogatories and discovery of applications. This act has also added extra criteria for disclosure of the facts relevant to the case. Now, under the Act, the parties are mandatorily required to file a list of all the documents along with their photocopies at the initial stage of filing the plaint. Moreover, the parties are restricted from depending on any documents which have not been given in the list along with their photocopies without the exemption of the Court. The Courts have been awarded discretionary power to grant exemplary costs against a party who unreasonably, wrongfully, willfully or even negligently failed to reveal all documents concerning the suit in their possession.

  • Written arguments – The Act has been made mandatory and introduced a new provision to Order XVIII to the Code, that parties submit brief and to the point written arguments under clear and distinct headings, within four weeks from the commencement of oral arguments. It also permits for the filing of amended written arguments within one week of the conclusion of arguments. Such a provision was not there previously.

  • The term period within which judgment has to be made– The Code stipulates that the conclusion of hearings judgments have to be pronounced within sixty days. This Act extends it to ninety days from the date of conclusion of arguments.

  • Case management hearing – This is an international practise which has been introduced for the first time in India by the Act. It allows the Court to make a timeline, and fix dates for the proceedings of the matter, which helps fulfil the purpose of fast disposal of cases. Under this new practice, no adjournments will be awarded for the single purpose of the absence of the council, which has long been used as a delaying tactic. The Court is given authority to punish parties if there are non-compliances with its orders. They can impose costs, forfeit parties' right to conduct suit and in extreme cases dismiss the plaint.

  • Disposal of the suit at first hearing – The Act which allowed for disposing of a suit in the first hearing and omits Order XV of the Code. This adds to the process of fair hearing and natural justice.

Alternative dispute resolution

Alternative Dispute Resolution hereinafter referred to as ADR is the mechanism of settlement of dispute outside the Court. Some arguments by agreement can be better resolved rather than Court decision. The emergence of the ADR process has also been associated with real problems of delays in the Court System. The parties associated with ADR to reach a friendly settlement of disputes with the various modes commanded. This concept is comparatively advantageous rather seek the remedy from the Courts.


MEDITATION

Mediation is one of the recognized modes of ADR. Settlement of conflicts by Mediation involves the process by which the parties or a mediator appointed by the Court according to the case, mediates the dispute by the application of the provisions between the parties to the suit of Mediation Rules, 2006 in Part II, and appropriate, by facilitating discussion with each separate mediator between parties directly or by communicating, by supporting parties in identifying issues, diminishing misunderstandings, exploring areas of compromise, clarifying priorities, generating opportunities in an attempt to solve the conflict and maintaining that it is the parties own responsibility for creating choice which affects them.


Meaning of issue

Issues of fact and Issues of Law are drafted in civil cases which indicates the point of adjudication arisen among the parties because of asserting the party by some fact which the defendant is denying that fact. The court has to pronounce the Judgement based on such issues. Issue refers to a point of subject in discussion of a question or some important facts. Issues are an area of conflicting averments decided by the court and made by the parties. Consequently, on the first hearing, the main task of framing of issues is done Each material affirmed by one party and denied by the other shall form the subject-matter of a distinct issue


Framing of issues

Basically, the framing of issues comes under order XIV. The order requires some conditions and material which is inclusive mainly of three things. Firstly, the allegations made on oath by any person present on their behalf by the parties, or statements made by the pleaders appearing for the parties. Secondly, the allegations made in arguments to interrogatories or in answers and thirdly, if documents are provided by the parties. Therefore their importance has been realised competently in leading judgement in State of Gujarat v. Jaipalsingh Jaswantsingh Engineers and Contractors 1993 where the judgement was passed that “such framing of issues in the beginning instance would facilitate proof in support of the claim the applicant to lead necessary reliefs and prayed pursuant thereto. In the second instance, it will avail to lead the evidence if he desires to bring home the defence pleaded, and thereafter the claimant gets an opportunity to confront and contradict the particular witness and in the third instance, persuade the trial 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 the backbone of a suit. They are often the lamp-post to the proceedings which enlightens the parties, the appellate court and even the trial court- as to what is the controversy, evidence and where the method of truth and justice lies.”

Issues are supposed to be clear and specific, indefinite and false 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 revise the issues, to frame supplementary issues or to look out issues that might appear to the court to be wrongly framed


The object of framing issues

The foremost object of framing issues is to ascertain the disputes arising among the parties by narrowing down the areas of conflict and also to determine where the parties differ. When one party affirms and another party refuses a material proposition of law or order, then only issues arise. If there is no specific denial, the question of framing issue does not commonly arise. Material propositions are the propositions of fact or law. The plaintiff should allege to show his right to sue of such material propositions in order. In the same way, the defendant must allege as to constitute his defence. Unless and until each material proposition is denied by the defendant and affirmed by the plaintiff, a distinct issue will not occur.


Kinds of issues

If the respondent does no defence, recording and framing issued by the Court does not arise. Even, in such a case, a Court needs an issue as much as the respondent does not make defence at the first hearing of the suit need not frame and record. In Desi Kadri vs Huzurabad Co-Operative Marketing Society Ltd, the court upheld that “Issues need not be framed when there is no dispute with regard to material averments in the plaint.” According to Rule 1(4) of Order XIV of C.P.C, there are basically two types of issues in the court :

  1. Issue of fact

  2. Issue of law

Preliminary issue

A “preliminary issue” is defined as a discretionary component of a dispute that has the potential to decisively resolve the claim or an extraordinary part of the claim, or otherwise, essentially cut down on the scope and costs of the litigation. A preliminary hearing in the suit is best described as a "trial before the trial" in which the judge determines, whether the respondent is “guilty” or “not guilty”.


Disposal of suit

Order XV lays down the court, in order to dispose of the judgement in the following case :

  • In any fact or law when the parties are not at any issues on any quarries

  • Where one of the defendants is not at issues to the plaintiff, the court may dispose or pronounce the judgement against such defendant.

  • Where either party fails to bring valid evidence without a valid reason.

Conclusion

The purpose of the Act is to deal with huge fiscal costs where financial disputes are at stake without truly improving the Code of civil disputes to better suit the several types, particularly commercial disputes is an effective and purposeful approach to that end and is not only innovative but also essentially the Act restricts quick disposition of commercial disputes coupled with the fact that it provides for arbitration, this can indeed go a long way in drawing attraction of foreign investments in India. Although this Act provides for imposing penalty in case of non-compliance adherence to strict timelines and to allot with the subject of pendency and suspension in litigation, the conclusion of the same in the long run is still probable upon how effectively and efficiently the provisions are enforced.


References


his article is written by Isha, a second-year student of BBA-LLB at Bharti Vidyapeeth, New Law College Pune. This article talks about the First Hearing.


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