Pakenham Walsh, J.
1. The appellant brought the suit for payment for work done by him for the 1st defendant's deceased husband Cruz Machado who was a merchant in Tuticorin. His case was that he was engaged by the 1st defendant's husband to work in his salt pans and on some schooners, a bungalow, sheds, etc., and that he had settled accounts with Machado up to August, 1917. Further dealings began on the 10th of February, 1918 and went on during the lifetime of Cruz Machado who died some time in July, 1922. The plaintiff then approached the 1st defendant, his widow, who asked him to go on with the work and he did so till the 7th of March, 1923. There was a settlement of accounts between himself and the 1st defendant attempted by P. Ws. 2 and 3 from which nothing resulted. Consequently the suit was launched for the recovery of the amount due to the plaintiff and Rs. 2,736-4-11 was claimed as due.
2. The trial began on the 15th April, 1926, and was transferred to the Court of the District Munsif of Tuticorin and was taken up there on the 22nd June, 1926. The case was heard on the 23rd March, 1926, 29th June, 1926 and 10th July, 1926, by which time nine witnesses on the side of the plaintiff had been examined and certain exhibits filed. On the 15th April, 1926, the plaintiff had made an application under Order 3, Rule 1 and Section 151, Civil Procedure Code, praying that the Court should issue an order directing the 1st defendant to appear before the Court; and this was accompanied by an affidavit in which he said that the 1st defendant knew about the matter and could speak the truth, but she was being kept back by Seshayya Fernand, her father. On this, the Court passed an order on the 2nd of August, 1926, that the 1st defendant should appear in Court on the 5th of August, 1926. She did not appear on that date. The suit was adjourned to the next day. On that day an application was put on behalf of the 1st defendant asking that there should be stay of execution and consequence's of the order of Court, dated the 2nd August, 1926, and that her appearance should be excused for two weeks or any reasonable time the Court might grant. The Court by its order passed that day dismissed this petition and under Order 9, Rule 12, struck out the defence of the 1st defendant The entry in the B Diary on that date is as follows:
1st defendant does not appear. There is therefore no appearance of defendant. The Court will proceed as stated in Order 9, Rule 12, Judgment reserved.
3. The District Munsif proceeded to deliver the judgment on the next day., He rejected the greater part of the plaintiff's claim holding that the plaintiff's evidence was 'untrustworthy, that his accounts had been cooked up and that the agreement set up with, 1st defendant had not been made out; but; on the evidence of P.W. 2 that the 1st defendant had offered to pay Rs. 500 he gave the plaintiff a decree for that amount. ' Both sides appealed and the lower appellate Court allowed the 1st defendant's appeal and dismissed the plaintiff's suit with costs throughout. Against that judgment the plaintiff has preferred this second appeal.
4. The judgment of the lower appellate Court is, I consider, unsatisfactory in several respects. The learned Subordinate. Judge says with regard to the application put in by the plaintiff under Order 3, Rule 1, Civil Procedure Code, that ' no final order appears to have been passed by the Lower Court'. Whatever the effect of the final order was, which I shall discuss later on, there is no question that by the order dated the 2nd August, 1926, the 1st defendant was ordered to appear in Court. He remarks:
No Court of law would be justified in ordering a party to appear in Court on an application put in under Order 3, Rule 1, Civil Procedure Code, except for very good reasons.
and in ,that remark he is undoubtedly correct. In Ayya Naddn v. Seeni Ammal (1919) 11 L.W. 289 it was held that where one party desires the presence of the opposite party in Court for the purpose of examining him as a witness the proper procedure to adopt is the one under Order 16 and not the one under the proviso to Order 3, Rule 1, Civil Procedure Code. It is argued for the plaintiff that the lower appellate Court is wrong in saying that the plaintiff did not desire to examine the 1st defendant as his witness and in the appeal petition to this Court, paragraph 9, it is stated that a number of summonses were taken out for her on various dates up to the 2nd of July, 1926. Whether this last statement is correct or not I am not in a position to say, as the summonses have not been submitted with the record. But assuming that the plaintiff did try to summon the 1st defendant, he took no further steps to enforce the summons by way of arrest or otherwise; instead of that he had resort to an application under Order 3, Rule 1, which as pointed out is a remedy to which he is not entitled. When the learned Subordinate Judge goes on to say that
the Lower Court was therefore wrong in recording that it had no other alternative than to proceed under Order 9, Rule 12, Civil Procedure Code,
while the remark is correct, it carries us no further because assuming that the Court did issue an order for appearance under Order 3, Rule 1, which was disobeyed, the learned District Munsif was perfectly entitled to strike out the defence. The power of a Court to strike out defence when an order is disobeyed is recognised in Vaiguntathammal v. Valliamma I.L.R. (1917) 41 Mad. 256 and Desari Venkatacharylu v. Manchala Yesobu : (1931)61MLJ477 and it is a matter within the power and discretion of the trial Court which it is not for the appellate Court to canvass. With regard to the argument that the judgment should not have been delivered without the plaintiff's case being closed and arguments heard, the Subordinate Judge says:
The last witness for the plaintiff was examined on 10th July. I can not conceive what further evidence plaintiff could let in now or would have let in before the Lower Court. There is absolutely no justification for the preposterous request made by the appellant's vakil for a remand in the case. Plaintiff, in my opinion, has exhausted all available evidence.
5. Now, assuming that the defence of the 1st defendant was rightly struck off - a matter with which I shall deal later - it is, no doubt, perfectly true that the plaintiff was not thereupon necessarily entitled to a decree for the relief claimed. He was not in any better position than if the 1st defendant had been exparte; and in Satyendra Nath v. Narendra (1923) 39 C.L.J. 279 it has been pointed out that
great caution should be exercised when suits are heard ex parte. This principle is of universal application.... The fundamental principle of law is that the plaintiff, when he comes to Court, must prove his case and he must prove it to the satisfaction of the Court. His burden is not lightened because the defendant is absent; on the other hand the responsibility is increased in one sense, for as observed by Sir Lawrence Jenkins in Deonandan v. Janki Singh when a matter is heard ex parte in the absence of one of the contestants who is not represented, it is the duty of the counsel to bring to the notice of the Court adverse as well as favourable authorities.
6. The plaintiff having admitted that Cruz Machado had made some part payment for his work had to prove what work he had done before his death, how much he had got for that and what was the balance; and certainly he had to prove the agreement with the 1st defendant and the work done for her. But granting that he had to prove all this, it seems to me clear that the Court could not close the case of the plaintiff without hearing his evidence in full and his counsel's argument, unless indeed it intended to grant him a decree in full. It has been pointed out to me that there is evidence adduced that Cruz Machado maintained accounts and that some accounts have been produced on the side of the defendants, on which it was argued that the plaintiff was prepared to rely, The delivery of judgment for only part of the relief asked for before plaintiff had closed his case and his argument has been heard was clearly illegal and calculated to prejudice the plaintiff and the suit must be remanded for re-trial.
7. I think it necessary however to state the position of the 1st defendant. Striking off of the defence is a highly penal procedure and therefore the order, disobedience to which is made the ground for doing so, must be free from any possible ambiguiLy. Now, it is true that the application of the plaintiff for the appearance of the 1st defendant was under Order 3, Rule 1; but when we come to the order passed on the 2nd August, 1926, it begins as follows:
The plaintiff in the suit applies by this petition to have the 1st defendant produced in Court and examined as his witness.
8. Then comes a part of the order which is not very relevant to the matter we are considering except this sentence:
From the very beginning plaintiff has been urging the Court to have the defendant examined as he expects that defendant will speak to the truth according to him.
9. The plaintiff's own case before me is that he had been-summoning the 1st defendant for being examined as his witness ; and the statement in the order about the plaintiff urging the Court to have the defendant examined must refer to this as there was no previous application under Order 3, Rule 1. Finally the order says:
I think it is necessary in the interests of justice that the defendant should be ordered to appear in person in Court for her being examined No' doubt, if defendant be examined on the side of the plaintiff, plaintiff will, take the risk of being bound by her statement on oath. The defendant will appear in Court on 5-8-1926.
10. Reading this order it seems to me clear that it is ail order to the defendant to appear to be examined as a witness for the plaintiff. There is certainly nothing in it inconsistent with such a view and where we are considering an order which may, if disobeyed, lead to highly penal consequences, it should be construed in favour of the defendant if there is any ambiguity. It has been argued that the 1st defendant has by the petition' put' in by her on the 6th August, 1926, read the order as one for her appearance to be examined by Court and it cannot be denied that in the order passed rejecting this petition the learned District Munsif seems to consider that his previous order was of that nature and he therefore proceeded to strike off the defences But we have to be guided, not by what the 1st defendant or the learned District Muusif himself' subsequently thought that the order meant but by the terms of the order itself which starts without any ambiguity by saying that the petition was one by the plaintiff to have the 1st defendant produced in Court and examined as his witness. It is conceded that if that was the nature of the order - if the 1st defendant had been ordered to appear as a witness for the plaintiff - then, disobedience to that order will be merely disobedience to a witness summons and would not justify the striking out of the defence. I must therefore hold that the striking out of the defence was not justified for disobedience to such an order.
11. A second ground is put forward against the order striking out the defence, namely, that defendants 2 and 3 who are minors should not be made to suffer for the failure of the 1st defendant to appear. Two cases in this connection have been quoted, one on each side. In Anni Ammal v. Muthnkumara Chettiar : (1912)23MLJ676 Sadasiva Aiyar, J. held that
A Court has jurisdiction to direct the personal appearance of parties at any stage of the case even in the absence of specific provisions in the Code; but a Court has no power to visit the disobedience of a next friend of a minor plaintiff to the Court's order to appear, on the minor himself, and to dismiss the suit on that account.
12. On the other side is quoted Ayya Nadan v. Secni Ammal (1919) 11 L.W. 289 where it was held that in the case of a lunatic the only way the Court can give an order for his appearance is by directing his guardian to produce him; when such an order is given, it is in effect an order to the defendant to appear in person and the failure to comply with it will enable the Court to act under Rule 12. In that case Anni Ammal v. Muthukumara Chettiar : (1912)23MLJ676 is mentioned and distinguished. There is a clear distinction between the two cases, because in the former case the guardian was not ordered to produce the minor but to appear on their behalf, whereas in the latter case the guardian was ordered to produce the lunatic. The two cases are not, therefore, really in conflict. In the present case the 1st defendant was ordered to appear not even specifically as representing the minors but apparently only as representing herself. In such a case the decision in Ayya Nadan v. Seeni Ammal (1919) 11 L.W. 289 would apply and disobedience to such order could not be made to prejudice the minors' case.
13. In the result the decree of the lower appellate Court is set aside, as also the decree of the trial Court. The order striking out the defence of the 1st defendant is also set aside. The case must be remanded for trial to the Court of first instance after allowing the plaintiff to close his case and the 1st defendant to close hers, unless for any further disobedience to any order of Court it should be necessary again to take action under Order 9, Rule 12.
14. Costs throughout will abide the result of the decree.
15. The stamp duty in this and the appellate Court will be refunded.