Bimla alias Asha Rani vs Smt. Anita Chadha and Others

B.L. Bhat, J.—In this Revision Petition, the petitioner has challenged the order dated 10.10.2002, passed by learned District Judge, Kathua

in File No. 125/ Civil for partition titled as Smt Anita Chadha and Anr. v. Bimla Devi and Ors. whereby the petition moved by defendant's counsel

for getting his statement recorded under Order X Rule 2 of the CPC on behalf of defendant No. 1 has been rejected on the ground that the dispute

is of such a nature between the parties wherein only the parties themselves can be able to speak about the facts of the case in order to enable the

court to come to the right conclusion.

Heard learned counsel for the parties.

Order X of the CPC for Examination of parties by the Court. Rule 2, Clauses (a) and (b) of the said Order provides that 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.

From the bare perusal of this Rule, it is manifest that Court 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, which includes even an Advocate representing such party. It is only in

circumstances mentioned in Rule 4 that the Court can direct the party to appear in person, when his/her counsel refuses or is unable to answer any

material question relating to the suit put to him by the court. In the instant case, the perusal of the application seeking examination of defendant No.

1 through his counsel reveals that the counsel representing the petitioner/defendant No. 1 is properly briefed by the defendant No. 1 therefore is

able and ready to answer any question that may be put to him by the Court under Order 10 Rule 2 of the CPC and he has rather made a written

application to that effect which the trial Court has rejected vide order impugned on a flimsy ground that the dispute is of such a nature between the

parties, wherein parties only can be able to speak about the facts which cannot be sustained. Besides the purpose of this rule is to get the pleading

of the parties elucidated, i.e., to say to ascertain the matters of dispute and not to enabling the Court to reach to the just decision of the case as

observed by the trial Court.

Vi0wed thus, the learned District Judge, Kathua has committed a jurisdictional error by not allowing the counsel for the defendant No. 1 to

appear on behalf of his client for making a statement under Order 10 Rule 2 of the Code of Civil Procedure. Therefore, the order impugned is set

aside, with a direction to the counsel appearing for the petitioner/defendant No. 1 before this Court to cause the appearance before the trial Court

on the next date of hearing for the purpose of getting his statement recorded on behalf of defendant No. 1, with a further direction to the trial Court

that in case the said counsel for the defendant No. 1 refuses or is unable to answer any material question, then he may direct him to cause the

appearance of the said defendant for the purpose.

Disposed of accordingly alongwith the connected C.M.P