1. In this petition under S. 115 of the Civil P. C., the learned counsel for the petitioner has raised a rather unusual contention in submitting that the trial Court in civil proceedings has no jurisdiction whatsoever to direct the personal appearance of the parties at any stage of the trial and this is more so in the case of the plaintiff. The necessary facts which furnish basis for this a submission are as follows:--
During the course of proceedings in a suit filed by Dalbir Singh petitioner through his attorney Jagdev Singh for the possession of the immovable property of Bhagat Singh deceased on the basis of a Will alleged to have been executed in favour of the former, the defendants including the wife and minor son of Bhagat Singh deceased filed an application with the prayer that Dalbir Singh plaintiff be directed to put in personal appearance on the next date when the witnesses in support of the alleged Will were to be examined. The plea taken by the defendants was that this plaintiff Dalbir Singh was neither the son of Lakh ram in whose favour the Will is alleged to have been executed nor did he execute the registered power of attorney in favour of Jagdev Singh as clamed by the latter. According to these defendants, Dalbir Singh had died much earlier to the alleged execution of the power of attorney in favour of Jagdev Singh and thus, according to them, the suit had been filed only by an impostor. The Court while disposing of this application vide is order dated Oct. 23, 1981, observed in the penultimate para as follows :
'It is the version of the counsel for the applicant that Dalbir Singh was not in existence and he did not execute any power of attorney and if Dalbir Singh is to be called then defendant will pay his expense. So in the interest of justice, I allow the applicant to call Dalbir Singh at his own expenses if he so desires. The applicant has to deposit the expenses before the plaintiff asked to appear in the Court in person.'
Subsequently as the plaintiff failed to put in appearance, the Court passed another order on Dec. 9, 1981, where in observed :--
'The counsel for the plaintiff is given final opportunity to produce the plaintiff in person positively on the next date of hearing otherwise his suit shall stand dismissed as per the provisions of law. To come up for presence of the plaintiff on 11-1-1982.'
Which provisions of law were in the mind of the Court has not been disclosed any-where on record.
2. These two orders--the one dated Oct. 23, 1981 and the other dated Dec. 9, 1981 - are now impugned on the ground s that (i) the Court had no jurisdiction too direct the presence of the plaintiff in person and (ii) in any case, the plaintiff could not be directed to put in appearance in the absence of the requisite expenses having been disposed by the defendants is per the direction of the Court in the later order. Mr. Ajmer Singh, learned counsel for the petitioner maintains that the only provision of law under which a party to a civil sit can be directed to put in appearance is Rr. 1 and 2 of O. 10 of the Civil P. C. According to the learned counsel, under no other circumstances or at no other stage of the proceedings in a suit the plaintiff can be directed to be present in person. This submission of the learned counsel, though made with some amount of vehemence, yet only discloses that he is completely oblivious of the provisions of O. 3, R. 1, Proviso to this rule codified the inherent jurisdiction in a in appearance in person. Undoubtedly this jurisdiction has to be exercised by the Court rarely or in exception circumstances for the short reason that the law or the main body of R. 1., O. 3, does recognise the right of a party to civil proceedings to appear or act in those proceedings through a recognised or a duly authorised agent or a pleader. For this view of mine I seek support from judgments in Kishnammal v. Paruvathan Chetty, 91926) 98 Ind Cas 723(1) and A. S. Mohammad Ibrahim v. Shaik Mohammad Marakyar, AIR 1949 Mad 292. Certain observations made in Bhupathiraju Suryanarayanaraju v. Bantupalli Appanna, AIR 1959 Andh pra 645, also lend support to the above-noted conclusion of mine. A reference by the learned counsel for the petitioner to S. N. Sharma v. Kamal Dev Soni, (1977) 2 Ren CJ 716, in support of his stand is totally irrelevant for the reason that it was not a case under O. 3. R. I, Civil P. C. and was rather a case pertaining to the provisions of O. 10, R. 4(2). Civil P. C.
3. I am further of the considered opinion that in the instant, case, the facts and circumstances disclosed by the defendants and as accepted by the trial Court do justify the direction given but he said Court for the personal appearance of the plaintiff. The sole submission of the earned counsel in resisting the direction of the Court is the imagined inconvenience of the petitioner to come from Bihar where he is alleged to be employed as a truck driver, to the trial Court at Ludhiana in Punjab. In support of his stand the learned counsel for the petitioner makes a reference to Sarla Rani Gupta v. Bhushan Lal, AIR 1976 J 7 K 12.
4. So far as the next stand of the learned counsel for the petitioner is concerned, though neither of the counsel for the parties is sure as to whether the defendant-respondents have deposited the requisite expenses as per the direction of the Court dated Oct. 23, 1981, yet I find that the Court could not possibly make the deposit of these expenses as a condition precedent for the appearance of the plaintiff in terms of O. 3, R. 1, It is only under the provisions of O. 16, that a party choosing to summon the opposite party s a witness can be made to deposit the expenses and the process fee for the summoning of that party. This is not the case here. Anyway, since the defendant-respondents have not chosen to impugn this direction of the Court contained in its order dated Oct. 23, 1981, I refrain from either quashing the same or expressing opinion any further. It is for the trial Court to see as to how far this direction has been carried out or what consequences flow from its non-compliance.
5. For the reasons recorded above, I do not find any merit in this petition and dismiss the same with costs which I asses at Rs. 3000/- The parties through their counsel are directed to put in appearance before the trial Court on June 11, 1982 on which date the trial Court will fix further date of the appearance of the plaintiff, as per the direction contained in its orders which have now been sustained.
6. Petition dismissed.