Research › Browse › Judgment

Allahabad High Court · body

1956 DIGILAW 292 (ALL)

Mst. Raghunathi v. Subkaran Misir

1956-09-17

ROY

body1956
JUDGMENT Roy, J. - After hearing learned Counsel for the parlies I am of opinion that this revision is incompetent as the impugned order does not amount to "a case decided" within the meaning of Section 115 of the Code of Civil Procedure. 2. The facts are these. The Defendant-applicant was Defendant No 2 to the suit. She filed a written statement against the claim of the Plaintiff. A date was fixed for settlement of issues. Defendant No. 2 was called upon trader the provisions of Order X, Rule 4(1) of the Code to present herself in person to answer certain questions which the court considered material for the purposes of the suit. Time was taken by Defendant No. 2 on ground of illness. The court called upon her to produce medical certificate. The required medical certificate was not produced by her. The result was that ultimately the court, acting under the provisions of Order X Rule 4(2) of the Code, directed that the written statement of Defendant No. 2 be struck off. It is against this order that the present revision has been filed. 3. Order X, Rule 4(2) of the Code says that if the 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 this provision of law two options are given to the court. It may pronounce judgment against the contumaceous party, or it may make such order in relation to the suit as it thinks fit. If the court chooses the first option, namely, if it pronounces judgment against the contumaceous party, such an order is appealable under Order XLIII, Rule 1(e) of the Code. But if judgment is not. pronounced and the court makes any other order in relation to the suit as it thinks fit under the provisions of Order X, Rule 4(2), such an order would not be appealable under Order XLIII, Rule 1(e). The question which has got to be considered is whether such an order is open to revision. 4. But if judgment is not. pronounced and the court makes any other order in relation to the suit as it thinks fit under the provisions of Order X, Rule 4(2), such an order would not be appealable under Order XLIII, Rule 1(e). The question which has got to be considered is whether such an order is open to revision. 4. Section 115 of the CPC reads as follows; The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears (a) to have failed to exercise a jurisdiction so vested, in it by law or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. 5. The words "record of any case which has been decided" have been interpreted in a very large number of decisions of the various High Courts in different ways. They came to be considered by a recent Full Bench of this Court in Ramrichpal Singh v. Dayanand Sarup 1955 A.W.R. (H.C.) 229. It was observed there that the court may have to pass during the progress of the suit pending before it certain orders, which may be subdivided into two groups: (1) orders which are entirely procedural or routine matters which are not disposed of by final orders; and (2) final orders which decide substantial questions and affect the rights of the parties. It was also observed that orders under the first category may be changed by the court at its discretion, but orders under the second category may be final decisions so far as the court passing them is concerned. 6. In the present case Order X, Rule 4(2) of the Code empowered the Court to pass the order striking out the written statement of the Defendant who according to the court was a contumaceous party. 6. In the present case Order X, Rule 4(2) of the Code empowered the Court to pass the order striking out the written statement of the Defendant who according to the court was a contumaceous party. Such a power was also contemplated under Order IX, Rule 12 of the Code, which enjoins that where a Defendant who has been ordered to appear in person does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of he rules contained in Order IX of the Code applicable to Plaintiffs and Defendants, respectively, who do not appear. Mow, in the present case, before the judgment is finally pronounced in the suit in the court below, or even at the time of the striking of issues, if the Defendant-applicant presents herself in person before the court and discloses sufficient reasons for her non-appearance earlier, it would be open to the Court to review the order passed by it by which the written statement was directed to be struck off. In my opinion the impugned order does not fall within the purview of the words "case decided" u/s 115 of the Code and it is not revisable under that section. The application is therefor.- dismissed with costs. The stay order is discharged.