Ama Lone vs Mst. Mugli.

Hasnain Masoodi, J.—The petitioner is defendant in Suit titled Mst. Mugli v. Ama Lone (File No. 146-Numbri), awaiting disposal in the

Court of learned Sub-Judge Pulwama.

It appears that after the petitioner/defendant failed to appear in the Trial Court to get his statement under Order 10, CPC recorded and no

cause was shown muchless a sufficient one to justify absence of petitioner/defendant, learned Trial Judge vide order dated 26-12-2009, impugned

herein, directed the written statement filed by the petitioner/defendant to be taken off the record.

The petitioner/defendant is aggrieved of the order of trial Court dated 26-12-2009, impugned in the Revision Petition, on the grounds that the

petitioner/defendant was prevented from appearing in the Court due to ailment and that the said cause was duly brought to the notice of the trial

Court. The petitioner/defendant claims to have made his stand very clear in his written statement, filed in opposition to the case set up by the

respondent/plaintiff and his failure to appear in the trial Court, was not to have any impact on the outcome of the suit. Learned trial Judge, while

making order, is said to have not followed the mandate of law under Order 10, Rule 4(1) of Code of Civil Procedure. It is insisted that Order 10,

Rule 4(2) CPC, was to be pressed into service only after the requirements of Order 10, Rule 4(1) CPC were fulfilled and a party to Civil Suit -

Petitioner in the present case failed to appear in person on the appointed date without any lawful excuse.

Heard and considered.

Order 10 of CPC maps out the procedure to be followed by the Court after the parties complete their pleadings. The Court, in terms of Order

10, Rule 1, CPC, is required to ascertain whether allegations in the pleadings are admitted or denied. Once the admission and denials are recorded

by the Court, the Court is to proceed to examine orally the parties or any person able to answer any material question relating to the suit,

accompanying the parties with a view to elucidate the controversy involved in the suit. However, the Court is not prevented from orally examining

any party, appearing in person or any person able to answer any material question relating to the suit. The Court may if it thinks fit put in the course

of such examination questions suggested by the parties. Order 10, Rule 4, CPC visualizes situation where the pleader appearing for a party to the

suit or a person accompanying such pleader, refuses or is unable to answer any material question relating to the suit, which the Court is of the

opinion the party, whom he represents, ought to answer and is likely to be able to answer, if interrogated in person. In such a situation the Court

may postpone the hearing of the suit to future day and direct that such party shall appear in person on such day. If such party fails without lawful

excuse to appear in person on the day so appointed, it is then only that the Court, in terms of Order 10, Rule 4(2), CPC, may pronounce judgment

against him, or make such order in relation to the suit as it thinks fit.

From a bare look on Order 10, Rule 4, CPC, it is abundantly clear that the Court in the first instance has to make an endeavor to obtain an

answer, touching any material question relating to the suit from the pleader or a person accompanying such pleader. The material question(s) are to

be asked from the pleader or the person accompanying pleader, only if the Court is of the opinion that the party, whom he represents, ought to

answer such questions. In the event the endeavor made by the Court does not meet any success and the pleader of the party or the person

accompanying pleader, refuses or is unable to answer such material question and the Court has reason to believe that the party is likely to be able

to answer such question, if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct such party to appear in

person on the appointed day. It is only after the party fails to appear in person despite direction given to that effect by the Court and further that

the party has not lawful excuse not to appear on the appointed date that the Trial Court may proceed to pass judgment or such order in relation to

the suit as it thinks fit.

Having taken an overview of the law on the subject let us shift focus to the facts discernible from the record. In the present case though the Trial

Court expressed its anguish for avoidable and unnecessary delay in making a forward movement in the trial of the suit and lamented on the failure

of the petitioner/defendant to appear in the Court despite repeated opportunities and adjournments, yet the Court did not record satisfaction in

respect of the basic requirement that were necessary to clear the decks for passing an order under Order 10, Rule 4 Sub-Rule 2, CPC. To

elucidate the Court did not record its satisfaction that the questions to be asked were material questions relating to the suit and that the pleader

(counsel) appearing for the petitioner/defendant had refused to answer such questions or had otherwise expressed his inability to answer such

material questions. The Court also did not record its satisfaction that in its opinion the material questions were of the nature that the party whom the

pleader represented ought to answer and that such party was likely to be able to answer if interrogated in person. The Court without dilating on

these aspects of the case proceeded to pass order under Order 10, Rule 4(2), CPC, directing that the written statement, filed by the

petitioner/defendant, shall not be taken into account and instead the plaintiff's evidence shall be recorded. The language of Order 10, Rule 4(2)

CPC makes it clear that the order under the said sub-rule was to be passed only after the Court was satisfied that the petitioner/defendant had no

lawful excuse for his absence. It implies that the Court was required to give the petitioner/defendant an opportunity to offer necessary explanation,

justifying his failure to appear on the appointed date and only after the explanation if any tendered, did not sound convincing to the Court, the

impugned order could have been passed. In the present case the trial Court on the other hand after highlighting failure of the petitioner/defendant to

appear in person, proceeded to pass the impugned order and did not at all consider whether failure of the petitioner/defendant to appear in the

Court was without lawful excuse. The order impugned in the Revision Petition thus does not stand legal scrutiny.

For the reasons discussed above, the Revision Petition is accepted and Order dated 26-12-2009 is set aside. Record be sent back to trial

Court. The parties to appear before the Trial Court on 25-5-2010.