1. Two suits in relation to which the present revision petitions are filed, are money suits on the foot of a promissory note brought by the plaintiff before the learned District Munsif on small cause side. The defendants admitted the execution of the pronotes, but denied that they were supported by consideration and contended that they were mere fictitious transactions. When the case was called on for hearing, the defendants made up their mind to abide by the oath of the plaintiff and requested the Court to call upon the plaintiff to take special oath. The plaintiff was not prepared to take the same and consequently the petition of the defendants was dismissed.
Then the defendants applied for the summoning of the plaintiff as a witness on their behalf. This petition was made under Section 32 and Order 16 Rule 10, Civil Procedure Code. It was stated therein, that even if the plaintiff says in open court without entering into the witness-box that the suit amounts were due, a decree may be granted in favour of the plaintiff. Their request however was that the plainliff should be summoned as a witness. The court under the circumstances, did not issue orders either under Section 32 er Order 16 Rule 10, Civil Procedure Code but purporting to act under Order 3 Rule 1, Civil Procedure Code called upon the plaintiff to be present in person.
The plaintiff filed an application requesting the court to dispense with his personal appearance, as he had lost his eldest son recently, and was in grief and that he suffered from high blood-pressure and hyper tension, which disabled him from appearing in person in the Court. This application was supported by an affidavit and a medical certificate. If was opposed by the defendants and after the medical evidence was taken, the Court directed that the plaintiff may enter his appearance two months afterwards i. e., on 15-12-1955. On that date, the plainliff made an application that he should be examined on commission, as he is in the same state of health as before.
The defendants in reponse to it. filed a petition requesting that the suit should be dismissed for non-appearance of the plaintiff, and stated that the plaintiff was hale and healthy and was wilfully avoiding appearance in court. It does not appear from the order that any evidence was taken in sup-port of the petition that the plaintiff was still in the same state of health as before. Since he was absent, the learned Munsif purporting to act under Order 9 Rule 12, Civil Procedure Code dismissed his suit with costs. It is against this order that the plaintiff lias come in revision.
2. There can be no doubt if the order requiring the personal presence of the plaintiff was validly passed, the consequences of Order 9 Rule 12, would naturally follow provided the conditions mentioned therein are satisfied.
3. The learned counsel on behalf of the petitioner argues that when the defendants themselves had applied under Order 16 Rule 10 and Section 32 C. P, C., it was but proper that the summons were issued accordingly and the defaults be dealt with in the manner contemplated by those provisions and lhat the court ought not to have resorted to penal provisions, which are intended only for extreme cases. In support of this argument, he has referred me to Ayya Nadan v. Thanammal. AIR 1920 Mad 213. Apnavoo Asary v. Sornammal Fern-andez, 65 Mad LJ 734: (AIR 1933 Mid 821) and Kishori Lal v. Chunni Lal, ILR 31 All 116.
4. On the contrary it was argued on behalf of the respondent relying on Vaiguntafhamal v Valliammai Ammal, ILR 41 Mad 256; (AIR 1918 Mad 1256) and Krishnammal v. Paruvathan Chetty, 98 Ind Cas 723 (Mad) that even if the court was not empowered by any specific provision, the courthad inherent power under Order 3 Rule 1 C. P, C. to order the plaintiff to appear in person if it considered necessary to do so in the interest of justice and as the court had done so Order 9 Rule 12 C. P. C. should apply.
That no doubt may be the correct position in law so far as the inherent powers of the court are concerned, but the question is whether notwithstanding the fact that the defendant had requested for issue of summons under a specific provision as was applicable to the case was it proper for the court to have resort to its powers under Order 3 Rule 1 C. P. C. and whether merely because the plaintiff had failed to appear in the court, the court should have acted under Order 9 Rule 12, Civil P. C.
It would appear that the defendants had desired the presence of the plainliff for purposes of examining him as a witness and their application was under Section 32 and Order 16 Rule 10 C. P. C. Ordinarily the proper procedure in such cases is to issue summons in compliance with the said provisions and to deal with the defaults in the manner provided in that connection. Under these provisions in case of his absence in spite of service of summons plaintiff's presence could have been enforced by issue of warrant and by proclamation and attachment of his property. These coercive measures were sufficient for the desired purpose.
It was further open to the court to draw an adverse inference against the plaintiff having regard to his conduct. It would appear barring the fact that the defendants required plaintiff's pre-sence in the court because if called to the court he will speak the truth and there will be an end of the case, there was no other reason for the court to come to the conclusion that the personal presence of the plaintiff was necessary in the case. Under these circumstances, the inherent powers under Order 3 Rule 1 C. P. C. which are intended for extra-ordinary cases ought not to have been exercised.
It is not shown lhat before the exercise of these powers, the plaintiff resorted to any delaying tactics or was interested in protracting the proceedings initiated by himself. In these circumstances, exercise of jurisdiction under Order 3 Rule 1 C. P. C. was not proper or expedient. It is further clear that the final order under Order 9 Rule 12 C. P. C. was passed without calling upon the plaintiff to adduce the evidence whether there was any sufficient cause for his personal non-attendance on the date fixed.
The penalties of Order 9 Rule 12 C. P. C. could not be visited on the plaintiff unless the essential requisites of that section were fulfilled. It was necessary for the court to satisfy itself that there was no sufficient cause for the plaintiff's failure to appear in person. That was essential even because plainliff had made an application supported by an affidavit that he was in the same state of health as before which had warranted on a previous occasion condonation of his personal absence. On this ground too, the exercise of powers under Order 9 Rule 12 C. P. C. cannot be said to he proper or legal. In these circumstances, I allow these revision petitions, set aside the orders of the learned District Munsif and direct that the case be disposed of in accordance with the provisions of law. There will be no order as to costs.