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2009 DIGILAW 652 (JK)

Sandeep Kour v. Bajinder Singh

2009-12-18

GH.HASNAIN MASSODI

body2009
1. Challenge in this Civil Revision, is to the order of learned 1st Additional District Judge, Srinagar dated 11-7-2009 in divorce petition under Hindu Marriage Act titled Bajinder Singh v. Sandeep Kour (File No. 5/ Numbri), whereby the learned trial Judge has "struck out the defence" of the respondent/non -applicant. 2. It appears that the aforesaid divorce petition was assigned to the learned 1st Additional District Judge, Srinagar on 27-5-2008. The non- applicant- respondent herein caused appearance through her counsel before the Trial Court on 21-6-2008. The non-applicant did not file objections on the date fixed for filing objections i.e. 23-7-2008, absented herself from the proceedings, and was set ex parte. The applicant-petitioner examined one witness in ex parte on 10-2-2008. The non-applicant, thereafter, filed an application for setting aside ex parte proceedings. The application was allowed on 6-7-2009, subject to the payment of costs. The operative part of the order reads as under: "........ the ex parte proceedings initiated against the defendant vide order dated 16-3-2009 are hereby set aside subject to the payment of costs of Rs. 1500/- Let the file come up for examination of the parties as envisaged under O. 10 R. 2 of CPC. Put upon 11-7-2009." 3. The divorce petition was thus posted for recording statements of the parties under Order 10 Rule 2 CPC on 11-7-2009. On the fixed date, neither the non-applicant nor her counsel appeared before the Trial Court. The learned trial Judge proceeded to pass following order: "Plaintiff AW his counsel present. Neither the defendant nor his counsel is present today. Even the costs have not been paid by the defendant as well as she has not chosen to appear in this Court for her examination as directed in terms of the previous order. Viewed thus, the defence of the defendant is hereby strikeout. Let the file come up for further proceedings. Put up on 1-8-2009." 4. The aforesaid order "striking out defence" and the Order dated 14-9-2009, rejecting application for review of the aforesaid order, are assailed inter alia on the grounds that the impugned orders were working harshly against the respondent and tantamounts to allowing the suit, without affording the non-applicant- respondent adequate opportunity to meet applicant- petitioners case. Put up on 1-8-2009." 4. The aforesaid order "striking out defence" and the Order dated 14-9-2009, rejecting application for review of the aforesaid order, are assailed inter alia on the grounds that the impugned orders were working harshly against the respondent and tantamounts to allowing the suit, without affording the non-applicant- respondent adequate opportunity to meet applicant- petitioners case. It is pleaded that the absence of the non- applicant on 11-7-2009 before the Trial Court was not deliberate or willful; and that the respondent aggrieved of frequent listing of petition, had filed an application for transfer of the case from the files of 1st Additional District Judge, Srinagar to any other court of competent jurisdiction; that the transfer application was dismissed, where-after the applicant appeared in the trial court and sought setting aside of ex parte proceedings. It is pleaded that on 11-7-2009, the applicant was not in a position to attend the court because of law and order problem in her home town- Baramulla and also because the public transport was off the roads due to bandh/ strike. Heard. 5. Order X Rule 2 CPC deals with the examination of the parties by the court. Order X Rule 2 CPC provides for oral examination of party, or companion of party. It reads as under : "Order -X: EXAMINATION OF PARTIES BY THE COURT. 2. Oral examination of party, or companion of party. 1. At the first hearing of the suit, the Court: a) shall, with a view to elucidating matter in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. 2. At any subsequent hearing, the Court may orally examine any party appearing in person, or present in Court, or any person able to answer any material question relating to the suit, by whom such party or his pleader is accompanied. 3. The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party." 6. 3. The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party." 6. Order X Rule 4 CPC visualizes a situation where the pleader of any of the party in the suit refuses or is unable to answer any material question relating to the suit. Rule 4 of Order X reads as under: "4. Consequence of refusal or inability of pleader to answer: 1. Where the pleader of 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 day 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." 7. A conjoint reading of Rule 2 and 4 of Order X leads to the conclusion that the Court with a view to elucidate matter in controversy in the suit, is required to examine such of the parties to the suit appearing in person or present in Court , as it deems fit. The power to make examination at the thresh hold extends even to companion of the party. The Court may insist on appearance in person of a party to the suit, where the pleader of any party, who appears by a pleader or the person accompanying the pleader as referred to in Rule -2 refuses or is unable to answer any material question(s) relating to the suit and the Court is of the opinion that the party if asked to appear in person ought to and may be able to answer such question(s). It is only after such party fails without lawful excuse to appear in person on the day appointed for his appearance, that the Court is empowered to pronounce judgment against the party, not appearing despite directions or make such order in relation to the suit as it thinks fit. It is only after such party fails without lawful excuse to appear in person on the day appointed for his appearance, that the Court is empowered to pronounce judgment against the party, not appearing despite directions or make such order in relation to the suit as it thinks fit. The learned 1st Additional District Judge, Srinagar apparently passed impugned order dated 11-7-2009 in exercise of powers under Order X Rule -4 sub Rule-2 CPC . It may be reiterated that the learned trial Judge before passing order " striking out defence" was to ensure that the following conditions were satisfied: i) that the party/non -applicant in the present case, appeared by a pleader and the pleader refused or was unable to answer question relating to the suit. ii) that the questions not answered by pleader were material questions relating to the suit. iii) that the party though asked to appear in person, had failed to appear in person on the date appointed. iv) that the party had no lawful excuse for such non-appearance. 8. It is well settled law that Order X Rule -4 Sub Rule -2 CPC being penal in character, before the rule is pressed into service, the Court must satisfy itself that the requirements of Rule 4 are strictly complied with. The Court, before it requires personal appearance of a party should examine counsel for the parties and if it feels further elucidation on any point is required, it may call the parties in person. An order directing the parties to appear in person can be passed only where the Court finds that there is material question relating to the suit, that has to be answered by the said party or his pleader, and the pleader refuses or is unable to answer such question. 9. In the present case, learned trial Judge before passing the impugned order, neither recorded satisfaction that conditions contemplated by Order X Rule 4 Sub Rule 1 warranting a direction to the non- applicant -respondent to appear in person was fulfilled nor did learned Trial Court satisfy itself that the non- applicant -respondent had no lawful excuse for non- appearance on the date fixed for recording her statement. The impugned order dated 11 -7-2009 thus has been passed in violation of mandate of law under Order- X Rule-4. 10. The impugned order dated 11 -7-2009 thus has been passed in violation of mandate of law under Order- X Rule-4. 10. This apart, the course suggested by Order VII Rule 2 CPC to be followed in the event of failure of the parties or any of them to appear, is to proceed in accordance with Order IX of the Code, unless the case falls within the ambit of the Explanation of the Rule. Order X Rule 4 Sub rule 2 visualizes presence of the pleader at the time order under said sub-rule is made. Order X Rule 4 Sub Rule 2 empowers the Court to pronounce judgment or make such order in relation to the suit as it thinks fit, where the party despite directions fails without a lawful excuse to appear in person. It implies that the pleader appearing for the party may convince the Court that the party not appearing before the Court has lawful excuse for such non appearance. It is only when the Court is not impressed by the excuse pleaded by the counsel that the court may still go ahead and pronounce the judgment or make any other order in relation to the suit. Such a right also accrues to the defendant/ non- applicant, who may on a subsequent date of hearing plead " Lawful Excuse" for his/her non-appearance on the date fixed for recording her statement under Order- X Rule 2 CPC. In short, Order X Rule 4 Sub Rule 2 makes room for the pleader of the party not appearing before the court on the fixed date or thereafter the party to the suit to convince the court that the party had a " Lawful Excuse" not appearing before the Court. A conjoint reading of Order X Rule 4 Sub Rule 2 and Order XVII Rule 2 leads to the conclusion in that an order " Striking out defence" or such other order is not to be made in absence of the party or the pleader where party appears through the pleader . The Trial Court thus, ought not to have "struck out the defence" or disallowed the application for review of the order, when neither the non- applicant nor the counsel were present on 11-7-2009. The Trial Court thus, ought not to have "struck out the defence" or disallowed the application for review of the order, when neither the non- applicant nor the counsel were present on 11-7-2009. The right course for the trial court was to set non-applicant/ respondent ex parte and provide opportunity to the petitioner to produce ex parte evidence and if such a course was not followed to allow the respondent to convince the court that the respondent had a "Lawful Excuse" for non- appearance as was due to effort of respondent while making application dated 14-9-2009. 11. For the reasons discussed hereinabove, Revision Petition is allowed. Orders dated 11-7-2009 and 14-9-2009 impugned in this revision petition are set aside. 12. Learned counsel for the respondent undertakes to ensure presence of the respondent in the Trial Court on the date the matter is directed to come up for further proceeding. 13. Copy of this order alongwith the record, if received be sent down. Parties to appear before the Trial Court on 30-12-2009.