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2011 DIGILAW 450 (PNJ)

Dilbagh Singh v. Harjit Singh

2011-02-03

A.N.JINDAL

body2011
JUDGMENT A.N. Jindal, J (Oral) - The petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 12.3.2009 (Annexure P1) passed by the trial court dismissing the suit of the petitioner-plaintiff under Order 10 Rule 4 CPC. 2. At the very outset, learned counsel for the petitioner has submitted that the suit could not be dismissed for his non-appearance and the petitioner-plaintiff could also show his lawful explanation for his nonappearance. At the same time, the court was also to record its satisfaction that some questions could not be replied by the counsel, then the party could be asked to appear and if the party had answered, the controversy could be resolved. In this regard, it was further urged that the counsel for the plaintiff never expressed his unwillingness to answer the questions which the court wanted to elicit, therefore, the suit could not be dismissed. He has referred to the judgment delivered in case M/s Ron Son Export House Pvt. Ltd. and another vs. The New Bank of India Ltd. AIR 1989 Punjab & Haryana 287 wherein it was observed as under :- “5. Having given my thoughtful consideration to the entire matter, though I am inclined to accept the stand of the learned counsel for the appellants that in the instant case till their counsel in the trial Court had either expressed his unwillingness or refusal to answer the questions which the Court wanted to elicit, there was no justification either to summon the defendants for the said purpose or to strike off their defence, yet the contention of the learned counsel that there should have been formulation of the questions which the Court wanted to put to the defendants deserves to be rejected. No doubt, it is true that the intention of the rule is to enable the Court not only to get obscure points clearly by obtaining the information from either of the parties but also, if possible, to get admissions so as to narrow down the issues raised in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly, before the Court can justifiably pass an order striking off the defence of a party. It is abundantly clear from the phraseology of the rule itself that before the Court requires the personal appearance of a party, it should essentially examine the parties' counsel and if it still feels that further elucidation of any point or question is necessary it may call the party in person. As has been observed by this Court earlier in Shri Saraswati Spinning Mills, Bhiwani v. M/s Gheru Lal Bal Chand Abohar, AIR 1981 Punj and Har 299 normally the admission or denial of a document is done by the counsel for the parties and it is only when the counsel is unable to do that the necessity may arise for summoning the party in person. The trial Court appears to have completely ignored this aspect of the matter while striking off the defence of the defendant appellants. I, therefore, find it impossible to sustain the approach and the conclusion, i.e. the granting of the decree by striking off the defence of the appellants.” 3. It was also observed in case Shri Saraswati Spinning Mills, Bhiwani v. M/s Gheru Lal Bal Chand, Abohar, AIR 1981 Punjab and Haryana, 299 as under :- “4. The learned counsel for the petitioner has contended that the trial court could resort to the provisions of Rule 4 (2) of the Code only after it had complied with the provisions of Rule 4 (1) by calling upon the pleader of the petitioner to answer material questions relating to the suit, which the trial court did not do at any stage. The contention has force. The record of the trial court was requisitioned at the request of the counsel for the respondent to enable him to point out the order under which the pleader of the petitioner may have been called upon to answer the questions required to be put by the Court pertaining to the suit. No such order is, however, forthcoming on the record. On the other hand, when a specific application was filed by the petitioner to exempt personal appearance of the proprietor in Court and to permit his pleader who was fully conversant with the facts of the case, to be examined, the trial court dismissed the said application by merely observing that the pleader of the petitioner would not be in such a position as to answer the question with regard to the signatures of Mr. K.C. Makharia, Proprietor of the petitioner-firm, on the disputed documents. The learned trial court further observed that “In my opinion it is K.C. Makharia who will be able to admit or deny his signatures on the said documents and it is his admission or denial that will have some legal value.” This is an erroneous approach to the whole matter. The admission or denial of documents is generally done by the counsel for the parties and it is only when the counsel is unable to do so that the necessity arises for summoning the party himself in person. In support of his argument, the learned counsel for the petitioner has placed reliance upon Vishnu Kumar v. State Bank of Bikaner and Jaipur, AIR 1976 Raj 195, which is an authority dealing directly with the point under discussion. It was held in the said authority that where the Court passed an order under O.X, R. 4 directing the defendant to appear in person without examining the defendant's duly authorised and instructed counsel, the order is clearly in contravention of O.X, R.2 and is an illegal exercise of jurisdiction. No authority to the contrary has been cited on behalf of the respondent. 5. The learned counsel or he respondent has also submitted that the order rejecting the prayer of the petitioner for exemption from personal appearance of its Proprietor was not impugned and hence it had become final. The argument is again untenable as by mere rejection of the prayer, the petitioner was not affected as the case had been adjourned. It was only when the trial Court took the drastic step of striking off the defence of the petitioner that they felt the necessity of impugning the order passed by the Court and thus, the petitioner was well within his right to do so.” 4. The object or Order 10 Rule 4 (2) of the Code and the order in which the suit could be dismissed has been explained in the judgment delivered in case Sarwan Singh v. Onkar Singh & Ors. 2010 (1) Civil Court Cases 231 (P&H) wherein it was observed as under :- “10. The object or Order 10 Rule 4 (2) of the Code and the order in which the suit could be dismissed has been explained in the judgment delivered in case Sarwan Singh v. Onkar Singh & Ors. 2010 (1) Civil Court Cases 231 (P&H) wherein it was observed as under :- “10. On plain reading of the aforesaid provisions, the only conclusion that can be drawn is that the Court is empowered to examine any party on first date of hearing or on any subsequent date of hearing who appears in person or is present in Court or any person who is conversant with the facts of the case. However, where a party is represented by a pleader/ counsel, opportunity is required to be afforded to such pleader/ counsel to answer the questions and in case, the said pleader/ counsel is unable to answer the question, that the Court could direct the party to appear in person and in the event of his/her failure to appear, resort can be made to sub rule (2) of Rule 4 of Order 10 of the Code and defence struck off. 11. This Court in an analogous situation in M/s Ron Son Export House Pvt. Ltd. Case (supra) had observed as under :- “Having given my thoughtful consideration to the entire matter, though I am inclined to accept the stand of the learned counsel for the appellants that in the instant case till their counsel in the trial Court had either expressed his unwillingness or refusal to answer the question which the Court wanted to elicit, there was no justification either to summon the defendants for the said purpose or to strike off their defence, yet the contention of the learned counsel that there should have been a formulation of the question which the Court wanted to put to the defendants deserves to be rejected. No doubt, it is true that the intention of the rule is to enable the court not only to get obscure points clearly by obtaining the information from either of the parties, but also, if possible, to get admission so as to narrow down the issues raised in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly, before the Court can justifiably pass an order striking off the defence of a party. It is abundantly clear from the phraseology of the rule itself before the Court requires the personal appearance of a party, it should essentially examine the parties' counsel and if it is still feels that further elucidation of any point or question is necessary it may call the party in person. As has been observed by this Court earlier in Shri Saraswati Spinning Mills, Bhiwani v. M/s Gheru Lal Bal Chand Abhar, AIR 1981 P&H 299 normally the admission or denial of a document is done by the counsel for the parties and it is only when the counsel is unable to do that the necessity may arise for summoning the party in person. The trial Court appears to have completely ignored this aspect of the matter while striking off the defence of the defendant appellants. I, therefore, find it impossible to sustain the approach and the conclusion i.e. the granting of the decree by striking off the defence of the appellants.” 12. The Karnataka High Court in M/s Karnataka Exports Ltd. v. Mysore Iron and Steel Ltd. Bhadravathi, AIR 1975 Karnataka 128 and Rajasthan High Court in Vishnu Kumar v. State Bank of Bikaner & Jaipur & Ors., AIR 1976 Rajasthan 195 have also expressed similar view in the aforesaid decision.” 5. At the same time when the counsel is ready to facilitate the appearance of the plaintiff to make statement, then the suit could not be dismissed merely on the ground that he was unable to appear in the court on one date of hearing. 6. Under the circumstances, the instant petition is accepted, impugned order dated 12.3.2009 (Annexure P-1) is set aside and the trial court is directed to proceed in accordance with the law.