Commencement of a Trial under the Code of Civil Procedure, 1908 | Overview Introduction Discovery and Inspection of Truth Framing of Issues Hearings in the Suit This article “Commencement of a Trial under the Code of Civil Procedure, 1908” shall look into the analysis of the procedure followed after a trial commences. The trial in a civil suit commences… Read More »

Commencement of a Trial under the Code of Civil Procedure, 1908 | Overview Introduction Discovery and Inspection of Truth Framing of Issues Hearings in the Suit This article “Commencement of a Trial under the Code of Civil Procedure, 1908” shall look into the analysis of the procedure followed after a trial commences. The trial in a civil suit commences after the plaint is filed, the date for the first hearing is fixed, the defendant is summoned and the written statement is...

Commencement of a Trial under the Code of Civil Procedure, 1908 | Overview

This article “Commencement of a Trial under the Code of Civil Procedure, 1908” shall look into the analysis of the procedure followed after a trial commences. The trial in a civil suit commences after the plaint is filed, the date for the first hearing is fixed, the defendant is summoned and the written statement is filed by the defendant.


Before the procedure for trial under the CPC is examined in detail, it is vital that the general procedure and the general facets of trial are understood clearly. In a trial, the victim side first submits their written submissions containing the claims, cause of such claim and the reliefs sought from the court.

In response, the opposite party submits their written submissions containing response to all individual allegations and claims put forth by the victim side and mentioning his point of view as to the facts of the case. After this, the court usually examines the victim in the court orally and on the basis of the understanding from the allegations put by the victim, the court frames the issues to be decided by the court at the end of the trial.

Then the victim is examined by his own counsel (examination-in-chief) to allow him to explain the facts and circumstances of the case and then the opposite party cross-examines the victim. Subsequently, the opposite party is examined by his counsel (examination-in-chief) to answer the allegations hurled by the victim side and then the victim cross-examines the opposite party.

The above mentioned is a bird’s eye view of the trial procedure in any matter; civil or criminal. According to place, nature of trial and requirements of the matter, this procedure takes different forms. For instance, in India, in civil matters, the examination-in-chief of parties to a suit is done through a serving list of questions to each other and demanding answers to them. These are called interrogatories.

Similarly, witnesses are examined-in-chief by mentioning their testimony on a sworn affidavit. Hereunder the article discusses the need and procedure of serving interrogatories, settling of issues and hearings in the court during the trial.

I. Discovery and Inspection of Truth

After the plaint and written statement is duly submitted and the trial commences, it is essential for the parties to gain knowledge about each other’s case and their contentions to be put before the Hon’ble Court.

The information does not only confine to material facts of the case according to other party but also includes all relevant documents and reports in his ownership or power which are applicable to issue in the suit can likewise be requested to be delivered because the parties may perhaps use this information to keep up the case or denounce or crush the case. There are, along these lines, two sorts of facts for a situation.

These are: (a) facto probanda, meaning facts that are the storyline or the circumstances for cause of action according to the party itself and (b) facto probantia, meaning those facts which form as evidence to be used in a court of law to prove facto probanda.

For instance, assume a case where A claims violation of his elementary rights by a wall constructed by B in front of the main gate of A’s house. B claims that the house possessed by A is owned by B and A is an illegal occupant of the house. A produces a sale deed showing the house being bought by A’s father from the previous owner of the house and pictures showing the wall blocking A’s right to free passage. On the other hand, B produces a lease deed between A’s father and B’s father showing that the house was leased out by his father to A and hence, the lease has ended and the possession is unlawful.

In this case, the fact that A claimed a wall construction before his house and B claiming the ownership of the house are facta probanda whereas the documents to prove these facts are facta probantia. In a civil suit, only facta probanda is allowed to be asked by the parties and not facta probantia.

Order XXII of the CPC deals with discovery and inspection of facts of each other by the parties through two means. Firstly, through interrogatories and secondly, by filing an application before the court.

Since it is as of now referenced that discovery might be looked for by documenting a sworn affidavit or generally against defendant or plaintiff with the suit; yet there are two conditions point of reference for a disclosure to be ordered by the court. First, that such disclosure or discovery is essential for fair and impartial disposal of the suit and second, such revelation in a way or otherwise spares cost.

Rule 12 of Order XXII provides the right to every party to a suit to file an application before the court requesting it to order the adverse party to produce certain documents which are essential to give the applicant a reasonable idea of the case of the adverse party.

However, there is an exception to this rule which states that if the documents are of privileged nature, i.e. documents which relate to government officials, defence personnel or any document relating interior matters of family are protected from being produced to the adverse party but, however, if the court finds the document essential for the case, it may order the party to produce it before the court for inspection.

II. Framing of Issues

Issues, in the simplest form, means questions that are raised by the parties to be resolved by the court. When two parties do not agree to a point of fact or circumstance and hurl allegations against each other, then issues arise which need to be addressed by the court.

Order XIV of the CPC deals with settlement of issues by the court after the suit has been brought before it. According to Rule 1, issues arise when ‘material facts’ related to the case before the court are asserted by one party while it is falsified by the adverse party. The keyword in the above statement is that the dispute must be over “material facts” and not general facts of the case.

The code also explains what is a material fact or a material proposition under Sub-rule 2 of Rule 1 and does not leave it in ambiguity. Accordingly, material facts are those facts which the plaintiff must allege or aver that exist to prove that there is a bona fide cause of action and he has a right to sue the defendant. On the other hand, material propositions for the defendant are those which he must assert before the court to establish a valid defence in his favour.

There can be disputes between the plaintiff and the defendant on several point of facts which may lead to several legal injuries to the plaintiff. All facts that constitute a different legal action or a distinct right to sue are separate material facts and for each material fact, the court shall frame an issue to be resolved. Further, at the disposal of the case, it also the general rule under Rule 2 of this Order of the CPC that the court should pronounce the decree and judgment separately for each issue. This ensures brevity and clarity in the points in dispute and the decision of the court.

According to Sub-rule 4, issues are of two types; (a) issues of fact and (b) issues of law. Issues of fact are those points in dispute which relate to the existence or non-existence of a factual situation and can be proved only through evidence. Issues in law are pointers in dispute with respect to the interpretation of certain legal provision. For instance, whether a piece of land belongs to A or B is an issue of fact and can be proved through evidence while whether the term ‘order’ under Section 2 of the CPC includes interim order as well as a question of law and requires detail argument and analysis of of the section to interpret the same.

According to Sub-rule 5, the issues are framed by the court itself after it determines the material facts which are in dispute. So, after the plaint and a written statement is submitted, the court shall examine the parties to the suit and allow the parties to present their opening arguments asserting their claims and cause of action for such claims. On the basis of these averments, the court shall decide the facts which are in dispute between the parties and legal provision, if any, which requires interpretation by the court. After the issues are settled by the court, the parties are required to address those issues in their submissions.

III. Hearings in the Suit

Hearing refers to the day to day hearing before the court wherein the parties present their respective submissions, examine witnesses and produce documents to substantiate their respective case. Order XVIII of the CPC deals specifically and particularly with hearings and the stages involved in the hearing of the suit. Hearing includes two essential stages which are explained hereunder:

  • Opening of the Case

It is the right of the plaintiff to commence the hearing by submitting his averments before the court. In its opening, plaintiff attempts to explain the court the material facts of the case and the cause of action arising from the facts. Further, this is the stage when the plaintiff has to satisfy the court that all legal requirements have been duly fulfilled and the suit is not barred under any law.

If the defendant accepts the allegations of the plaintiff at the first hearing when summon was issued to him, the right to begin shifts to the defendant from the plaintiff. The defendant shall commence the proceeding and explain the court part of the allegations which he accepts and part, if any, which he denies.

The defendant goes on to ascertain the court regarding the circumstances in which such actions had taken place and may assert that the plaintiff does not have the right to claim the relief that he seeks.

  • Production of Evidence

Evidence here refers to witness testimony by the witnesses produced by both the parties. Before proceeding with the rules of recording evidence, it is necessary to understand that there are two kinds of examination a witness is subjected to. When the witness is examined by the party who calls the witness, it is called examination-in-chief and when the witness is examined by the adverse party, it is called cross-examination.

According to Rule 4, examination-in-chief of a witness shall not be conducted orally but his testimony shall be written on a sworn affidavit and submitted to the court and the adverse party to prepare for cross-examination. An affidavit which has been once filed can be withdrawn by the party who files it if the application is made before the commencement of the cross-examination and the court shall not infer anything against the party from such withdrawal.

All the affidavits should be filed subsequently, one after the other and when all the affidavits are filed, the court fixes date for cross-examination of witnesses one by one. According to sub-rule 2, cross-examination of a witness whose affidavit has been filed shall be conducted by the court itself or by a commissioner appointed by the court to act on its behalf.

These evidence shall be taken by the court in writing and as far as practicable through dictation to his agent/stenographer. The evidence should be given on oath which is mandated under Rule 5 of the Order and only such examinations will allow the case to be appealed before an appellate court.

After the conclusion of the evidence, the parties may render closing submissions and the court records its finding according to what it has observed and pass an appropriate decree with reasoning.


  1. Avtar Singh, The Code of Civil Procedure, (5th 2018).
  2. Dinshaw F. Mulla, The Key to Indian Practice: A Summary Of The Code Of Civil Procedure, 11th 2015.
  3. C. Sarkar, Sarkar Code of Civil Procedure, (2017).

  1. General Rules of Filing a Plaint
  2. Issue and Service of Summons in Civil and Criminal Cases
Updated On 30 Jun 2020 10:39 PM GMT
Ashish Agarwal

Ashish Agarwal

Advocate | School of Law, Christ University Alumnus

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