1. This appeal brought on behalf of the defendant is directed against the order dated 29-3-1973 made in O. S. No. 50 of 1972 on the file of the Court of the Civil Judge, Shimoga, under Order X, Rule 4 of the Code of Civil Procedure.
2. The matter arises in this way: The respondent the Mysore Iron and Steel Ltd., Bhadravathi, is the plaintiff and the appellant, Karnataka Exports Ltd., Bangalore, is the defendant in O. S. No. 50 of 1972 aforesaid. Both the parties are limited companies. The plaintiff is a State-owned company. The suit was instituted on 14-8-1972 for recovery of a large sum of Rs. 15,72,442-67 from the defendant for the goods supplied. The defendant-company filed its written statement on 14-12-1972. Thereafter, the matter was adjourned on several occasions for the settlement of issues. On 29-1-1973, the learned Civil Judge Shri Chabbi, made an order to the effect that the officer of the defendant-company, who had verified its written statement, may be kept present for examination before the settlement of issues, and the case was posted to 19-2-1973 for the appearance of the officer of the defendant-company. For some reason or the other, the case was adjourned to several dates for the appearance of the person who had verified the written statement. Ultimately, the Court below made an order on 29-3-1973 under Order X, Rule 4 (2) of the Code of Civil Procedure and decreed the suit on the ground that the officer of the defendant-company who had verified the written statement, did not appear for his examination as directed.
3. Aggrieved by the said order, the defendant has preferred the present appeal under Order XLIII, Rule 1 (e) of the Code, which provides for an appeal against an order under Rule 4 of Order X pronouncing judgment against a party.
4. Order X, Rule 4 of the Code reads:
'Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.'
Under the above rule, an order directing a party to appear in person can only be made if the pleader who represents him, has refused or is unable to answer the material questions Vide Satu v. Hanmantrao, (1899) ILR 23 Bom 318; Chetanram v. Mangharam, ILR (1956) 6 Raj 921. In Chetanram's case it has been stated that the power of the Court under Order X, Rule 4, is; not an unlimited one, that it is only when the party's pleader or agent refuses or is unable to answer material questions that the Court can direct the presence of the party and that in the absence of such refusal or inability, there is no case for the exercise by the Court of its power under Order X, Rule 4 of the Code. I am in entire agreement with the statement of law as stated by Wanchoo, Chief Justice, as he then was, in Chetanram's case.
5. It is rather surprising that the learned Civil Judge, without taking care to read the provisions of Order X, Rule 4 of the Code, has proceeded to make an order pronouncing judgment. If there was any difficulty in understanding the pleadings, it was for the Civil Judge to have asked the lawyer of the defendant to answer any material questions relating to the suit and it was only when the lawyer was unable to explain or answer that the Court could have; directed the defendant to appear in person. ' It is also to be noted that the defendant is A limited company. The person who had verified the written statement is only the Managing Director of the Company. Can it be said that the Managing Director is the defendant? Anyway, it is unnecessary to answer this question in this appeal.
6. The order made by the Court below is clearly opposed to the provisions of law and therefore cannot be sustained.
7. Accordingly, I allow this appeal, set aside the order of the Court below, and direct that the suit be restored to its original file and disposed of as expeditiously as possible. No costs.
8. Appeal allowed.