Corepacks Pvt. Ltd.& Ors. Vs. Harbans Lal (D) Thr. LRS.  INSC 577 (3
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO OF 2010
[Arising out of SLP (C) No.19894/2009] M/s. Kapil Corepacks Pvt.Ltd. & Ors.
... Appellants Shri Harbans Lal (since deceased) Through Lrs. ... Respondents
Leave granted. This appeal relates to the scope of Rule 2 of Order
10 of Code of Civil Procedure (`Code' for short) and the correctness of
invoking of Section 340 of the Code of Criminal Procedure (`Cr.P.C.' for short)
in regard to answers given by a party in an examination under Order 10 Rule 2
of the Code.
Late Harbans Lal (for short the `plaintiff' of whom the
respondents are the legal heirs) 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 (father of third appellant) 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.
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. On 5.3.2007, they also
filed their written statement in the suit filed by Harbans Lal denying the
claim, and making a counter claim seeking a declaration that the
agreement/receipt put forth by the plaintiff was forged and void. The 3
appellants alleged that second appellant and his late brother had never signed
the agreement/receipt and the signatures found thereon, (purporting to be the
signatures of second appellant and his late brother) were clever forgeries;
did not receive Rs.24 lakhs said to have been paid in cash; that the sum of Rs.
9 lakhs paid by cheque by Harbans Lal, was an advance to their company (first
appellant) obtained by late Sohanlal Dua to tide over a short term financial
crisis and the said amount was treated as share application money.
In the said suit, 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. On 31.7.2007 a
learned Single Judge of the High Court made an order directing as follows : (a)
parties to file their original documents within four weeks and matter to be
listed before the Joint Registrar for admission/denial of documents on
27.9.2007; (b) matter to be listed before court for framing issues on 8.1.2008;
(c) parties to be personally present on the next date of hearing for recording
their statement under Order 10 Rule 2 of the Code; and (d) the original
receipt/agreement of sale dated 7.9.2003 should be kept in safe 4 custody in a
sealed cover. In regard to the appellants' application seeking reference to a
hand writing expert, the learned single Judge directed as follows:
as the directions sought for sending the receipt/agreement to sell to a hand
writing expert is concerned, I am of the considered view that the parties can
lead their respective evidence including of hand writing expert in support of
their pleas. Application stands disposed of."
The appellants filed an appeal aggrieved by the refusal to refer
the matter to a hand writing expert, contending that they had obtained a
Preliminary Report dated 4.2.2007 from a Handwriting Expert with reference to a
photocopy of the Agreement/Receipt; and that the Handwriting Expert could give
expert evidence on the genuineness of the document, only if he got an
opportunity to examine the original also. The said appeal was disposed of by a
Division Bench of the High Court on 1.11.2007 with the following observations:
our considered opinion, the apprehension of the learned counsel for the
appellant is misplaced and unfounded as the appellant can file an application
before the learned Single Judge seeking intervention of the court to permit a
hand writing expert to examine the original receipt/agreement to sell dated
7.9.2003 take photographs etc. and give his opinion with regard to the
genuineness of the said document.
when any application is field by the appellant, the same shall be considered by
the learned Single Judge in terms of the observations made herein giving due
weightage to the submissions of the learned counsel appearing for the
5 In pursuance of it, the appellants filed an application on
7.1.2008 under Order 26 Rule 10A of the Code to permit their Handwriting Expert
to inspect the original Agreement/Receipt dated 7.9.2003 and take photographs
thereof so that he can give a further report as also evidence. They also made
another application on 7.1.2008 to modify the order dated 31.7.2007 and defer
the examination under Order 10 Rule 2 of the Code till the report of the
Handwriting Expert was received. In the meanwhile, the plaintiff Harbans Lal
having died on 12.11.2007, his legal representatives came on record on
On 3.10.2008, a learned Single Judge directed the Principal
Officer and Managing Director of the first appellant-company to appear in
person on 12.11.2008 along with its annual returns filed with the Registrar of
Companies, income tax returns and the balance sheets for the financial year
2003-2004 onwards. In pursuance of the said order, the second appellant
appeared before the court with the relevant documents on 12.11.2008. The second
appellant was examined under Order 10 Rule 2 of the Code and his statement
recorded by the learned Single Judge, is extracted below:
am the Managing Director of M/s. Kapil Corepacks Pvt.Ltd. Rs. 9 lacs received
from the plaintiff is shown in the statement of account of the 6 defendant No.1
- Company. However, the said amount is not reflected in the annual return of
the defendant No.1-Company which was filed in the Registrar of Companies. It is
correct for the period ending 31st March, 2004 receipt of share application
money of Rs. 9 lacs is not shown and mentioned. As on 31st March, 2004, the
paid up share capital of the defendant No. 1- Company was Rs. 51 lacs. This did
not include Rs. 9 lacs. Defendant No.1-Company is a Pvt. Ltd. company.
plaintiff did not fill up any share application form/share allotment form
before payment of money. I am not aware whether a request letter or a share
application form is required to be filled up by a party before shares can be
allotted. At no point of time, defendant No. 1 has recorded or mentioned entry
of Rs. 24 lacs as received from the plaintiff in cash. We know the plaintiffs.
We have known them for several years.
: Please examine the stamp and the signatures and state whether they belong to
the defendant No. 1 - Company and who has signed? (Witness was shown copy of
Agreement/Receipt in a manner that only the rubber stamp and the signature on
the document was visible and the rest portion of the document was covered by a
blank paper. For the sake of convenience, the Agreement/receipt is marked `A')
Answer : Stamp at point `A' is that of defendant No.1 - Company and the same
has been signed by me.
: Are you ready and willing to pay back Rs. 9 lacs? Answer : We are ready and
willing to pay Rs. 9 lacs.
supplied) On conclusion of the said examination, the learned Single Judge made
the following order on 12.11.2008:
of the Managing Director of the defendant No. 1 - Company has been recorded
today in the court. The Managing Director has admitted his signature on the
Agreement/receipt as well as stamp of the defendant No. 1 - Company on the said
document was thereafter shown to the witness after removing blank paper. I may
note here that the said document was denied at the time of admission/denial and
in the written statement.
-Managing Director of defendant No. 1 Company has produced copy of annual
returns. These will be indexed and filed in the Registry within two days. Copy
of the same be supplied to the learned counsel for the plaintiff within one
matter on 21st January, 2009 when all pending applications will be considered.
the next date will also examine whether or not to initiate proceedings against
Mr. Harish Kumar Dua, Managing Director of defendant No. 1 Company under
Section 340 Code of Criminal Procedure, 1973 and 195 of the Indian Penal
aggrieved, the appellants filed an intra-court appeal on 16.1.2009. A Division
Bench of the High Court dismissed the said appeal, by the following order dated
Managing Director of the appellant had denied his signatures earlier on the
agreement/receipt but when his statement was recorded under order 10 CPC before
the court, an admission came that the signature were his and stamp of defendant
No. 1 company. The truth emerged though belatedly.
nothing wrong with this process by which the learned judge has recorded
statement under Order 10 of CPC which is a tool for the court to obtain
elucidation of the matter and to obtain answer to any material question. The
authority of the court to examine a party under Order 10 Rule 2 CPC can hardly
be doubted and undoubtedly the crucial document is the agreement/receipt in
respect of the matter in controversy.
that the appeal is wholly misconceived and without any merit."
The said order is challenged in this appeal by special leave. On
the contentions urged by the learned counsel, the following questions arise for
(i ) What
is the scope and ambit of Order 10 Rule 2 of the Code? (ii) Whether the court
could, in an examination under Order 10 Rule 2 of the Code, confront a
defendant with only the signature portion of a disputed unexhibited document
filed by the plaintiff (by covering the remaining portions of the document) and
require him to identify the seal/stamp and signature? (iii) Whether on the
basis of the answer given by a party, in response to a question under Order 10
Rule 2 of the Code, the court could prosecute him under Section 340 of Code of
Criminal Procedure read with Section 195 of the Indian Penal Code? Re :
We may first advert to the relevant provisions. Rule 2 of Order 10
of the Code as also Rules 1 and 3 are relevant and they are extracted below :
10 - EXAMIANTION OF PARTIES BY THE COURT
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.
examination of party, or companion of party -- (1) At the first hearing of the
suit, the Court- (a) shall, with a view to elucidating matters in controversy
in the suit examine orally such of the parties to the suit appearing in person
or present in Court, as it deems fit; and (b) may orally examine any person,
able to answer any material question relating to the suit, by whom any party
appearing in person or present in Court or his pleader is accompanied.
any subsequent hearing, the Court may orally examine any party appearing in
person or present in Court, or any person, able to answer any material question
relating to the suit, by whom such party or his pleader is accompanied.
Court may, if it thinks fit, put in the course of an examination under this
rule questions suggested by either party.
Substance of examination to be written -- The substance of the examination
shall be reduced to writing by the Judge, and shall form part of the
Rule 1 enables the court to ascertain from each of the parties (or
his pleader), at the first hearing whether he admits or denies such of those
allegations of fact made in the pleadings of the other party, which were not
expressly or by necessary implication admitted or denied by him. In other
words, if the defendant in his written statement fails to expressly or by
necessary implication admit or deny any of the plaint allegations, the court
can ascertain from the defendant, whether he admits or denies the said plaint
allegations. Similarly, if the defendant has made some allegations against the
plaintiff in his written statement, and no reply is filed thereto by the
plaintiff, 10 the court can ascertain whether plaintiff admits or denies those
Rule 1 of Order 10 is necessary only in cases where the court finds that the
plaintiff or the defendant has failed to expressly or impliedly admit or deny
any of the allegations made against him, by the other party.
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, the examination under Rule 2 of Order 10 of the
Code, 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.
Further, under Rule 1 of Order 10, the court can examine only the parties and
their advocates, that too at the `first hearing'. On the other hand, Rule 2
enables the court to examine not only any party, but also any person
accompanying either party or his pleader, to obtain answer to any material
question relating to the suit, either at the first hearing or subsequent
hearings. The object of oral examination under Rule 2 of Order 10 is to
ascertain the matters in controversy in suit, and not to record evidence or to
secure admissions. The statement made by a party in an examination under Rule 2
is not under oath, and is not intended to be a substitute for a regular
examination under oath 11 under Order 18 of the Code. It is intended to
elucidate what is obscure and vague in the pleadings. In other words, while the
purpose of an examination under Rule 1 is to clarify the stand of a party in
regard to the allegations made against him in the pleadings of the other party,
the purpose of the oral examination under Rule 2 is mainly to elucidate the
allegations even in his own pleadings, or any documents filed with the
pleadings. The power under Order 10 Rule 2 of the Code, 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.
The above position of law is well settled. We need refer only to
two decisions in this behalf. In Manmohan Das v. Mt. Ramdei & Anr. [AIR
1931 PC 175], the Privy Council observed:
doubt under Order 10, Rule 2, any party present in Court may be examined orally
by the Court at any stage of the hearing, and the Court may if it thinks fit
put in the course of such examination questions suggested by either party. But
this power is intended to be used by the Judge only when he finds it necessary
to obtain from such party information on any material questions relating to the
suit and ought not to be employed so as to supersede the ordinary procedure at
trial as prescribed in Order 18."
supplied) A Division Bench of the Madras High Court in Arunagiri Goundan v.
Koundan & Ors (AIR 1949 Madras 707), held as follows referring to Order 10
Rule 2 of the Code :
"At the outset it must be pointed out that this (Order 10 Rule 2) does not
provide for an examination on oath. This provision was intended to be used to
elucidate the matters in controversy in suit before the trial began.
not a provision intended to be used to supersede the usual procedure to be
followed at the trial."
The object of Order 10 Rule 2 is not to elicit admissions. Nor
does it provide for or contemplate admissions. The admissions are usually
contemplated (i) in the pleadings (express or constructive under Order 8 Rule 5
of the Code); (ii) during examination of a party by the court under Order 10
Rule 1 of the Code; (iii) in answers to interrogatories under Order 11 Rule 8
of the Code; (iv) in response to notice to admit facts under Order 12 Rule 4 of
the Code; (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.
The power of court to call upon a party to admit any document and
record whether the party admits or refuses or neglects to admit such document
is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code.
Nothing however comes in the way of the court combining the power under Order
12 Rule 3A with its power under Order 10 Rule 2 of the 13 Code and calling upon
a party to admit any document when a Party is being examined under Order 10
Rule 2. But the court can only call upon a party to admit any document and
cannot cross-examine a party with reference to a document.
Learned counsel for the appellants contended that confronting the
signature portion of a disputed document by covering up the remaining portions,
is a tool in the arsenal of the cross examining counsel. He submitted that the
court examining a party under Order 10 Rule 2 of the Code while purporting to
elucidate the matters in controversy, cannot confront the signature portion of
a disputed unexhibited document by adopting the procedure of covering up the
other portions of the agreement.
The learned counsel for the respondents on the other hand
submitted that the power of the court under Order 10 Rule 2 of the Code, to
examine any party with reference to any document is wide and unrestricted and
therefore, any procedure adopted to arrive at the truth, could not be said to
be a deviation from the normal examination under Order 10 Rule 2 of the Code.
He relied upon the decisions of several High Courts in support of his 14
contention that the court could confront a party with a document and seek his
admission in respect of its execution. The decisions relied upon are :
Kavad v. Shyamsunder [AIR 1984 Raj. 113], Amrita Devi v. Sripat Rai [AIR 1962
All. 111], Rajiv Srivastava v. Sanjiv Tuli [AIR 2005 Del. 319] and Gautam Adani
v. Container Corporation of India [150 (2008) DLT 281]. On a careful
consideration of these decisions, we find that they are not of any assistance
in this case.
Bhanwar Lal Kavad (supra), a learned Single Judge of Rajasthan High Court held:
my opinion the court should resort to the examination of the parties under Rule
2, particularly on the documents, which are said to be signed by the parties.
.... it is better that the original documents are put to the party and
admission or denial is obtained after visual observations by the party himself
of the original documents. After looking into the documents, the party would be
in a position to admit or deny the same, which would not be possible, if the
same is got done by his pleader."
Learned Single Judge of the Allahabad High Court in Amrita Devi (supra) and the
Division Bench of Delhi High Court in Rajiv Srivastava (supra) held that an
admission made by a party under Order 10 Rule 2 of the Code is conclusive
against him, and the court can proceed to pass judgment on the basis of such
In Gautam Adani (supra), a Division Bench of the Delhi High Court referred to
the scope of Order 10 Rule 2 thus:
are of the view that examination of the parties is a matter that is per se
intended not so much for determining any right or obligation in the suit or
resolving or adjudicating upon a controversy as it is for identifying the
precise area of controversy so that the same can be effectively adjudicated
upon. The distinction between any order which adjudicates upon a controversy or
a part thereof and another which simply attempts to identify the real area in
controversy cannot be lost sight of. Inasmuch as the impugned order directed
the defendants to remain present for recording their statements under Order 10
Rule 2, it was an attempt to identify the real issues in controversy and to
elucidate matters which, in the opinion of the learned Single Judge, required
to be elucidated."
None of these decisions assists the respondents. Bhanwar Lal Kavad recognizes
the power of the court to call upon a party to admit a document.
Devi and Rajiv Srivastava reiterate the position that if a party makes an
admission of fact, it will be binding on him. Gautam Adani supports the
contention of the appellants that the scope of Order 10 Rule 2 of the Code is
limited to identifying the matters in controversy and not to adjudicate upon
the matters in controversy.
The object of the examination under Order 10 Rule 2 of the Code is
to identify the matters in controversy and not to prove or disprove the matters
in controversy, nor to seek admissions, nor to decide the rights or obligations
of parties. If the court had merely asked the second appellant 16 whether he
had executed the agreement/receipt or not, by showing him the document (by
marking the document for purposes of identification only and not as an
exhibit), it might have been possible to justify it as examination under Order
10 Rule 2 read with Order 12 Rule 3A of the Code. But 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 clearly outside the scope of an examination under Order 10 Rule 2
of the Code and the power to call upon a party to admit any document under
Order 12 Rule 3A of the Code. What the High Court has done in this case is to
`cross-examine' the second appellant and not examine him as contemplated under
Order 10 Rule 2 of the Code. We therefore hold that the purported examination
under Order 10 Rule 2 of the Code, by confronting a party only with a signature
on a disputed and unexhibited document by adopting the process of covering the
remaining portions thereof is impermissible, being beyond the scope of an
examination under Order 10 Rule 2 of the Code.
In this case the appellants-defendants denied having
signed/executed any agreement/receipt in favour of the respondents. In the
examination under 17 Order 10 Rule 2, the court did not ask the second
appellant whether he had signed the document or not, by showing the document.
What was done was confrontation of a signature alone without disclosing the
document. When so confronted, the second appellant admitted the signature shown
as his signature. But that is not an admission of execution of
specific case of appellants in the written statement was that the Agreement/Receipt
dated 7.9.2003 was a clever forgery. If a signature is a clever forgery, there
is a likelihood of the same passing the normal scrutiny of the person to whom
it is attributed. Similar is the position in regard to stamping the name of the
company. If a false signature is very different from the real signature, and is
easily identifiable, it will be a `forgery' but not a `clever forgery'.
Therefore, if the document allegedly containing the forged signature is covered
in such a manner as to show only a stamp/seal and signature, and if a question
is put by the court under Order 10 Rule 2 to identify the seal/stamp and the
signature and if the witness identifies the signature as his and the stamp/seal
as that of his company, there are two possibilities : The first is that what is
shown is the genuine signature of the party and the genuine stamp of his
company, and that he has identified and admitted them. The second is that they
are clever forgeries and the party could not obviously identify the forgery when
it was shown to him by 18 covering other portions of the document, when he is
given only a normal glance without an opportunity to scrutinize it properly.
Whether it is a forgery or not will have to be determined with reference to the
expert evidence and after the evidence of both plaintiff and defendants tested
Both the learned Single Judge and the Division Bench 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. The observations of the learned Single Judge in his order
that "The Managing Director has admitted his signature on the
agreement/receipt as well as stamp of the defendant no.1 company on the said
document" and the further observation that on the basis of the said
answer, the second appellant could be proceeded under Section 195 of Indian
Penal Code read with Section 340 of Code of Criminal Procedure, are without any
basis. Equally unwarranted is the observation of the Division Bench : "The
Managing Director of the appellant had denied his signature earlier on the
agreement/receipt, but when his statement was recorded under Order 10 CPC
before the court, an admission came out that the signature were his.... The
truth emerged though belatedly". Admission must 19 obviously be a
conscious and deliberate act. Admission can be explained.
admission of a signature is not an admission of execution of a document.
to identify the matters in controversy by examination of parties at the
pre-trial stage under Order 10 Rule 2, is completely different from the power
exercised by the court under Section 165 of the Evidence Act to put any
question it pleases in any form, to a witness or a party in order to discover
or to obtain proper proof of relevant facts, or the power under Order 18 Rule
14 of the Code to recall and examine any witness. The court's anxiety to do
justice by speeding up the process of the suit should not itself lead to injustice.
The Division Bench has affirmed the order of the learned Single
Judge that he will next hear whether he should proceed to initiate proceedings
under Section 340 Cr.P.C. read with Section 195 of Indian Penal Code (`IPC' for
short). Section 195 of Cr.P.C. provides that whoever gives or fabricates false
evidence intending thereby to cause, or knowing it to be likely that he will
thereby cause, any person to be convicted of an offence punishable with
imprisonment for life, or imprisonment for a term of seven years or upwards,
shall be punished as a person convicted of that 20 offence would be liable to
be punished. Section 195 (1)(b) of the Cr.P.C.
that no court shall take cognizance of any offence punishable under section 195
of IPC when such offence is alleged to have been committed in, or in relation
to, any proceeding in any Court, except on the complaint in writing of that
Court. Section 340 of the Cr.P.C. provides that when upon an application made
to it in that behalf or otherwise, any Court is of opinion that it is expedient
in the interests of justice that an inquiry should be made into any offence
referred to in clause (b) of sub-section (1) of section 195 of Cr.P.C. which
appears to have been committed in or in relation to a proceeding in that Court
or, as the case may be, in respect of a document produced or given in evidence
in a proceeding in that Court, such Court may, after such preliminary inquiry,
if any, as it thinks necessary, record a finding to that effect, make a
complaint thereof in writing, sent it to a Magistrate of the first class having
jurisdiction etc. Thus the power under section 340 CrPC read with section 195
IPC can be exercised only where someone fabricates false evidence or gives false
evidence. By no stretch of imagination, a party giving an answer to a question
put under Order 10 Rule 2 of the Code when not under oath and when not being
examined as a witness, can attract section 195 of IPC and consequently cannot
attract section 195(1)(b) and section 340 of Cr.P.C.
The respondents relied upon the decision of a Division Bench of
the High Court in Satish Kumar v Union of India [2009 (108) DRJ 317] to contend
that there can be a prosecution under Section 340 Cr.P.C. in regard to a
statement under Order 10 Rule 2 of the Code. The conclusion in Satish Kumar
that a party can be prosecuted under Section 340 Cr.P.C. for his answers in an
examination under Order 10 Rule 2 is erroneous and unsound.
noticed above, the answers to an examination under Order 10 Rule 2 are not on
oath and therefore the party is not deposing as a witness on oath when giving
his answers under Order 10 Rule 2 of the Code. In Satish Kumar, the Delhi High
Court purported to rely upon the decision of this Court in B.K.
Damodar H. Bajaj [2001 (9) SCC 742], to hold that prosecution under section 340
CrPC is permissible in regard to answer given under Order 10 Rule 2 of the
Code. What this Court observed in B.K. Gupta was that a complaint can be filed
against a person who has given false affidavit or evidence in a proceeding
before the court. But a party giving an answer in an examination under Order 10
Rule 2 is neither giving evidence nor giving a affidavit. Section 340 of the
Code will not be attracted with reference to any statement under Order 10 Rule
2 of the Code assuming that the Delhi High Court had laid down the law rightly
in Satish Kumar, the said observation will not help the respondent in this
case. In Satish Kumar, it was 22 held that a false statement given in the
examination under Order 10 Rule 2 of the Code can give rise to criminal
prosecution under Section 340 of Cr.P.C. But in this case the High Court has
proceeded on the basis that the second appellant spoke the `truth' in response
to the question in the examination under Order 10 Rule 2 of the Code. There is
no finding that second appellant made a `false statement' in his examination
under Order 10 Rule 2 CPC. Therefore, the said decision will be inapplicable,
even if it had been rightly decided.
Consequently, 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.
In view of the above, this appeal is allowed. The order dated
20.1.2009 of the Division Bench and the order dated 12.11.2008 of the learned
Single Judge, directing the matter to be listed to consider whether the second
appellant should be prosecuted under Section 340 Cr.P.C., are set aside. As the
process of confrontation of an unexhibited document by covering portions of it
by a court, is beyond the scope of examination under 23 Order 10 Rule 2 of the
code, the answer to such question shall be excluded from consideration and
completely disregarded. The court conducting the trial and hearing arguments
shall decide the suit in accordance with law on the basis of evidence placed
and ignore the said `answer' under Order 10 Rule 2 of the Code.
We make it clear that whatever we have stated or observed during
the course of this Judgment, are only in the context of examining the
correctness of the procedure adopted under Order 10 Rule 2 of the Code, and not
intended to be findings of fact.
...........................J. (R V Raveendran)