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Miss Tashi Dorji Vs. Birendra Kumar Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1463 of 1979
Judge
Reported inAIR1980Cal51
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rule 3 - Order 10, Rule 4, 4(1) and 4(2)
AppellantMiss Tashi Dorji
RespondentBirendra Kumar Roy
Appellant AdvocateMukul Prokash Banerjee, Adv.
Respondent AdvocateBankim Chandra Dutt, Adv.
Cases Referred(All) and Wali Mohammad v. Jamal Bhai
Excerpt:
- .....authorised by rule 4 of order x of the code to require the personal attendance of the party to a suit. rule 4 runs thus :'4 (1). where the pleader or 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 date 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.....
Judgment:

D.C. Chakravorti, J.

1. In this Rule the propriety of Order No. 36 dated March 31, 1979 made by the learned Judge, 4th Bench, City Civil Court, Calcutta, is challenged.

2. The relevant facts stated succinctly are as follows :

The opposite parties who were the landlords brought a suit for eviction against the petitioner on the ground that the petitioner defaulted in payment of rent since December, 1974. The suit was decreed ex parte on April 21, 1977. Thereafter the present petitioner made an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) for having the decree set aside on the ground of non-service of summons and for restoration of the said suit. An application for stay of the Title Execution Case No. 64 of 1977 arising out of the said ex parte decree was also made on behalf of the petitioner and the Court below by its order No. 19 dated February 25, 1978 directed the petitioner to deposit Rs. 709/-by February 27, 1978. The petitioner duly deposited Rs. 709/- in terms of the said order No. 19 dated February 25, 1978 and an order staying execution of the said decree was made and April 1, 1978 was fixed for the hearing of the Misc. Case arising out of the said application under Order IX Rule 13 of the Code. On that day the petitioner was personally present as by the said order No. 19 she was required to be present personally but as the Presiding Officer was transferred and the Judge-in-Charge had no time, the hearing was adjourned to June 3, 1978. Thereafter the hearing was adjourned from time to time and it was ultimately fixed on March 31, 1979. The impugned order is the order passed that day whereby the learned Judge on the prayer of the petitioner adjourned the peremptory hearing of the case to May 5, 1979 and further ordered that on the failure on the part of the petitioner to appear in person on that day the said Misc. Case would stand dismissed for non-compliance with the Court's Order No. 19 dated 25-2-1978.

3. Mr. M. P. Banerjee, learned Advocate appearing in support of the Rule initially argues that the Court has no power to require the personal attendance of any party to a suit. When it was pointed out that in proper cases the Court has been empowered by different provisions of the Code, such as, Order V Rule 3 and Order X Rule 4 to require a party to a suit to be present in person, Mr. Banerjee conceded that it was so.

4. Mr. Banerjee further argued that the impugned order was bad inasmuch as in terms of that order the Misc. Case was to stand dismissed for non-compliance with the Court's Order No. 19 dated 25-2-1978 in the event of the failure on the part of the petitioner to appear in person. As the petitioner did personally appear on April 1, 1978 which was the date fixed by the said order No. 19 and on which date she was required to be present in person by that very order, namely, Order No. 19, the said Order was duly complied with and there was nothing more to be done by the petitioner in terms of that order. Strictly speaking, therefore, the failure on the part of the petitioner to appear in person on May 5, 1979 would not be tantamount to non-compliance with Court's order No. 19 dated 25-2-1978. In that view of the matter that part of the impugned order dated March 31, 1979 whereby it was ordered that on the failure to appear in person on May 5, 1979 the Misc. Case would stand dismissed for non-compliance of the Court's order No. 19 dated 25-2-1978 was bad.

5. As already pointed out the Court in proper cases has powers to require personal attendance of a party to a suit even though he or she may be represented by a lawyer and there may be a person competent on his or her behalf to instruct the lawyer properly. In particular, the provisions of Order V Rule 3 of the Code and Order X Rule 4 of the Code authorise the Court in the circumstances stated therein to require a party to a suit to appear in person. By the proviso to Order III Rule 1 of the Code there is general power conferred on a Court to direct a party to a suit to appear in person. Further Rule 3 of Order V of the Code empowers the Court to require the defendant or plaintiff to appear in person. But Rule 4 of Order V of the Code restricts the application of Rule 3 of Order V to such party as resides within, the local limits of the Court's ordinary original jurisdiction and to a party re-siding without such limits provided the place of residence beyond such limits be less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than 200 miles distance from the Court-House. Further, I have already pointed out that the Court in certain circumstances has been authorised by Rule 4 of Order X of the Code to require the personal attendance of the party to a suit. Rule 4 runs thus :

'4 (1). Where the Pleader or 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 date 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.'

6. Thus, having regard to the facts and circumstances of a case if the Court requires some material questions relating to the suit to be answered and if the Pleader or the person or any such person accompanying the Pleader as referred to in Rule 2 refuses or is unable to answer such question and the Court is of opinion that the party concerned is likely to be able to answer if interrogated in person, the Court may direct such party to appear in person. Further, if in these circumstances the Court directs the personal appearance of a parry the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit if such party fails without lawful excuse to appear in person. Thus, in the circumstances referred to in Sub-rule (1) of said Rule 4 the Court may direct a party to appear in person but in view of the provisions contained in Sub-rule (2) of that Rule the Court can only pronounce judgment or pass such order as it thinks fit after the party concerned fails to appear and it does so without any lawful excuse. Obviously, therefore, when in the circumstances, stated in Sub-rule (1) the Court directs a party to appear in person no judgment or order may be made in anticipation of non-appearance of the party in terms of the order directing it to appear. In the present case, the Court ordered that the case would stand dismissed for non-compliance with the Court's order. That part of the order is obviously bad in view of what has been stated above. The Court may pass an order dismissing the suit only after there is failure on the part of the party concerned to appear and such failure is without any lawful excuse. Thus, an order of dismissal made in anticipation of supposed non-appearance would be bad under said Sub-rule (2).

7. Mr. Banerjee refers me to several cases, namely, Karnataka Exports Ltd. v. Mysore Iron & Steel Ltd. : AIR1975Kant128 , Raghnath v. Sita Ram AIR 1965 J&K; 60, Satu v. Hanmant Rao Gopalrav Nimbalkar (1899) ILR 23 Bom 318, Vishnu Kumar v. State Bank of Bikaner and Jaipur , Parmarath Gir v. Krishna Dayal Gir AIR 1933 All 517, Abdul Jalil v. Humera Bibi (1909) 2 Ind Cas 463 (All) and Wali Mohammad v. Jamal Bhai AIR 1932 Nag 135.

8. In the first five cases referred to above, it is laid down as a general principle that under Rule 4 of Order X of the Code, a party to a suit can be directed to appear in person only after the Pleader representing him either refuses or is unable to answer any material question relating to the suit. There can be no doubt about the correctness of this proposition. In Abdul Jalil's case (supra) it has been laid down that an order made by a Court requiring a party to appear in person but without stating reasons therefor would be bad. I find it difficult to agree with this view. There is nothing in Rule 4 of Order X requiring the Court to record its reasons in writing for ordering a party to appear in person. It would suffice if from the materials on record it appears that the circumstances in which an order requiring a party to appear in person may be made are pre-sent. In the case of Wali Mohammad (supra) it is held that only in two cases personal appearance of the plaintiff can be required and those two cases are provided for in Rule 3 of Order V and Rule 4 of Order X of the Code.

9. Mr. B. C. Dutt, appearing for the opposite party, contended that the impugned order ought not to be disturbed in exercise of the powers under Section 115 of the Code. I find no substance in Mr. Dutt's contention inasmuch as the impugned order was made by the Court when it had no jurisdiction to pass such order without first ascertaining if the Pleader on behalf of the defendant was unable to answer the question which the Court required to be answered. Further, that part of the impugned order whereby the Court directed that the suit should stand dismissed for non-compliance with Order No. 19 was wholly meaningless in view of the fact that Order No. 19 was already complied with and there remain-ed nothing for further compliance.

10. In the circumstances aforesaid the impugned order ought to be set aside but it should be noted that the learned Judge if he considers any question to be material in relation to the suit and wants such question to be answered, he may require the personal attendance of the defendant in this case after the learned Judge finds that the Pleader representing the defendant or the person accompanying the Pleader for the purpose of instructing him either refuses or is unable to answer such material question.

11. The Rule is accordingly made absolute and the impugned order is set aside. The learned Judge, however, may direct the defendant-petitioner to appear in person in accordance with the observations made above. There will be no order as to costs.


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