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2017 DIGILAW 543 (KER)

Kabeer v. Bineesh, S/o. Lekshmanan

2017-03-20

P.SOMARAJAN

body2017
JUDGMENT : P. Somarajan, J. Aggrieved by Ext.P3 order dated 17.6.2013 in O.S.No.86 of 2012 of the Court of the Subordinate Judge, Cherthala, the petitioner/defendant came up with this petition. 2. The lower court due to non-appearance of the defendant in person for exploring the possibility of a settlement out of court, struck off the written statement submitted by him under Ext.P3 order and proceeded with the suit which is under challenge. 3. Very serious questions are involved in the matter. For better understanding of the issue, it is fit and proper to extract the order of the lower court which is in the following lines: "Plaintiff present. Defendant not present. As there is direction of this court for both parties to present to see chance for compromise. Since defendant failed to appear his written statement is strucked off from the file by virtue of Order 10, Rule 4 (2) CPC. For Balance Court Fee to 23.07.2013." 4. The first question that would arise for consideration is whether it is proper on the part of the lower court to strike off the written statement on the ground of non-appearance of the defendant for having a settlement. Secondly, what is the jurisdiction vested with the court under Order 10, Rule 4 (2) CPC and thirdly, what would be the effect of the 1999 amendment incorporating Rules 1A, 1B and 1C to Order 10 in the exercise of jurisdiction under Order 10, Rule 4 (2) CPC. 5. Rule 4 Order 10 CPC would come into play only when the pleader refuses or is unable to answer any material question relating to the suit which the court is of the opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person. The court can direct for appearance of the party only on satisfying the above said condition and sub-rule (2) would come into play when such direction was issued by the court and there is failure to appear in person without lawful excuse on the day so appointed. The incorporation of Rules 1A, 1B and 1C by Amendment Act, 1999 has no much relevance in the exercise of the jurisdiction under Rule 4 Order 10 CPC. The incorporation of Rules 1A, 1B and 1C by Amendment Act, 1999 has no much relevance in the exercise of the jurisdiction under Rule 4 Order 10 CPC. On the other hand, an out of court settlement as per Section 89 CPC principally governed by the will of parties and it is open to the party to decide whether a recourse under Section 89 can be accepted or not. No court can compel any of such parties to appear before anybody for having an out of court settlement. There is no provision anywhere in the CPC to penalize the party who fails to appear before any authority for exploring the possibility of an out of court settlement as enumerated under Section 89 CPC. By the impugned order the lower court virtually penalized the defendant for not appearing for a settlement on the posted day. The scope and ambit of Rule 4 Order 10 CPC is to ensure the party to answer any material question relating to the suit when the same was refused by the Pleader or the Pleader is unable to answer the same. It is a condition precedent and it cannot be extended to deprive or strike off the defence available to the defendant on any ground other than the one enumerated under Rule 4 Order 10 CPC. Directing the parties to appear for exploring the chances of a settlement would not come under the purview of Rule 4 Order 10 CPC. Rules 1A to 1C should be read and be understood as enabling provisions so as to have a settlement of the dispute outside the court in accordance with Section 89 CPC. The order passed by the lower court hence per se illegal and is liable to be set aside. In the result, the original petition is allowed. The order of the lower court is set aside. The lower court is hereby directed to proceed with the suit in accordance with the law in force. No order as to costs.