Raghnath Matoo vs Sita Ram

J.N. Bhat, J.—This is a Defendant's revision application directed against the order of the learnea District Judge Srinagar dated 27-6-64

whereby the learned Judge has ordered the Counsel for the, Petitioner to cause the appearance of the Defendant in person 'before the court below

for examining the Defendant under Order 10 Code of Civil Procedure.

It appears that a suit for ejectment and for recovery of a sum of Rs. 3468/8 was Instituted against the Defendant as far back as 11th February

1960. A preliminary issue with regard to the fact whether the Defendant was an agriculturist was raised in the case. The Defendant was held to be

an agriculturist by the lower court on 2-2-62. Later on the case has been going 0n and now the court desires to record the statement of the parties

under Order 10 CPC When the court ordered the Defendant to appear In person for his examination under Order 10, the Defendant's learned

Counsel put in an application on 27-6-64 to the effect that the court had ordered the parties to come to the court to make a statement. The

Advocate of the Defendant was fully conversant with the facts and was prepared to make a statement on behalf of the Defendant. The Defendant

could not come as he was ill, but he offered to appear as his own witness in due course. The learned District Judge rejected this prayer of the

Defendant and directed the counsel for the Defendant to produce the Defendant in person on the next date of hearing; otherwise proceedings

against him would be taken under Order 10 Rule 4 of the CPC The learned Judge states that no certificate of in health was presented by the

Defendant. As would presently appear, the non-production of the certificate by the Defendant would be of on sequence in disposing of the matter

in. controversy between the parties. At the present moment as is clear, the learned court wanted to examine the Defendant under Order 10 Rule 2

of the CPC in ""order to enable the court to frame the issues in the case. This rule reads as under:

At the first hearing of the suit or at any subsequent hearing, any party appearing in person or present in court, or any person able to answer any

material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the court; and the court may,

if It thinks fit, put in the course of such examination questions suggested by either party.

Along with this is to be read Rule 4 of the same Order which reads as under:

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 any 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.

So the penal consequences of non-appearance by a party who is directed by the court to appear are contained in Sub-rule (2) of Rule 4 of

Order10 of the CPC but the question is whether the requirements of Rule 4 are satisfied in the present case. The requirements of Sub-rule (1) of

Rule 4 of Order 10 are that the pleader of the party who is ordered to appear in person should refuse to answer any material question relating to

the suit, or that he should be unable to answer such question. Unless either -of the two .conditions are satisfied, the penal -.consequences; as given

in Sub-rule (2) of rule cannot at all ensue authority need be cited in Support of this proposition as it is plain enough, ""but none -the- less the

following authorities may safely be quoted in this behalf.

Sadeshwar Narain v. Qadir Bakhsh, AIR 1018 ouch 420 which is a Divisional Bench authority lays down that personal attendance of the

parties can be ordered only when the pleader is unable to or refuses to answer questions put by the court.

In Parmarath Gir Vs. Krishna Dayal Gir and Others, Niamatuiiah J. with whom Bennet J. concurred laid down that the power of the court under

this rule is a limited one. it is only where the party's pleader or recognized agent refuses or Is unable to answer a material question that the court

can direct the personal attendance of the party.

In Satu v. Hanmant Rao, ILR 23 Bom 318 the Plaintiff who was represented by a pleader was summoned at the instance of the Defendant to

attend the court and give evidence on his behalf. The first court, considering the personal appearance of the Plaintiff necessary, issued an order u/s

120 of the CPC that he should attend and on his failure to do so passed a decree against him. The decree was set aside' on appeal, and the case

was remanded which order of remand was upheld by the High Court, holding that the court had no power to issue an order u/s 120 unless the

pleader had refused to or was unable to answer a material question it may be noted that Section 120 corresponds to Order 10 Rule 4 of the Code

of Civil Procedure.

The learned District Judge has, however referred to Section 3 of the ARA which corresponds to Section 12 of the Dekkhan Agriculturists Relief

Act. The relevant portion of this section reads under:

In any suit of the description mentioned in Section 3 Clause (b), in which the Defendant, or any one of the Defendants is an agriculturist.

The Court, if the amount of the creditor's claim is disputed, shall examine both the Plaintiff and the Defendant as witnesses unless, for reasons to be

recorded by it in writing, it deems it unnecessary so to do and Shall enquire into the history and merits of the case, from the Commencement of the

transactions between the parties and the persons (if any) through whom they claim out of which the suits has arisen, ,first with a view to ascertaining

whether there is any defence to the suit on the ground- of fraud, mistake, accident, undue influence or otherwise, and Secondly, with a view to

taking an account between such parties in manner hereinafter provided.

The learned District Judge thinks that he can direct the personal attendance of the Defendant under the provisions Of this section, but if this

section is read carefully it shows that either party has to appear as witness in order to allow the court to , reach a conclusion Whether there is any

plea available to the debtor by way of fraud, mistake etc., and secondly with a view to taking an ac count between such parties 'proved in the Act.

The question of examining a party as witness can arise only after the issues are framed. Before the issues are, framed no party has a right to lead

evidence and the Question of appearing as a witness does not at all arise unless issues are framed.

Mr. Sunder Lal, now ever, argued that it -was necessary that this section ,snood be read as in Powering the Court to order a party to appear

ID eel to proceed with me examination of the learned person in a court in order to make a statement . under Order 10, CPC so that the court

would find whether any defence is available to the debtor by way of framed misrepresentation etc. This argument may be plausible but it is not

supported by the language of Section 8 of the ARA. While interpreting a certain provision of a statute, the first thing to 'be kept in mind is to see

what words nave been actually used in .that provision, if the words are clear, other considerations are of no consequence, The presence of the

words 'as witnesses' in this section leaves no room for doubt that this section does not make It obligatory upon any one of (the parties to a litigation

under the ARA to be ordered to present itself before the court in order to be examined under the provisions of Order 10 Rules 2 and 4 of the

CPC Section 18 of the AHA makes the CPC apply to proceedings under the ARA. Therefore Order 10 also win apply to cases tried under the

AKA and the penalty contemplated by Order 10 Rule 4(2) can be inflicted upon a party only when his pleader is unable to or refuses to answer

any question material or relevant to the suit.

Here is an express prayer in the form of an application by the Defendant's learned Counsel that he is prepared to answer an questions relating

to the suit and is fully posted with information about the facts of the case and therefore he may be examined instead of the Defendant. The

Defendant's learned Counsel has further undertaken to produce the Defendant as a witness alter the issues are struck. 1 am therefore definitely of

the view that the Defendant cannot be compliance under the provisions of of Rules 2 and 4 to come and make a statement in person in the Court

so long as his pleader is able and prepared to answer questions relating to the suit.

The provisions of the AIR have not in any way abrogated this order or any rule thereof, I have, however, come across an authority reported as

Act. Begam v. Topanmai Hirananci, which lays down that Section 7 and 12 of the Dekkhan AKA (corresponding to Section 8 of the state AKA)

make it obligatory upon the court to examine the parties as witnesses with the object as indicated above, failure on the part of a party not to raise

this point in appeal but by cross-objection win not preclude him from taking such a plea, because a point of law which is apparent on the face of

the record may be taken for the first time in second appeal. The law as laid down in that authority is perfectly correct, in that case' the Defendant

had not at' all appealed at any stage of the case as his witness. In that case it was nowhere stated that if a party under the Dekkhan ARA refuse to

d examined in person before the framing of Issues under the provisions of Order 10 when his pleader is able and prepared to answer all questions

relating to the suit, he should be visited with the consequences as laid down in Order 10 Rule 4. Therefore that authority even if it is sought to be

invoked in aid of the Respondent's case does not at all help him.

The order of the learned District judge under revision is therefore set aside and the is directed to proceed with examination of the learned

Counsel for the Defendant. If the learned Counsel for the Defendant is unable, in the opinion of the learned Judge, to answer any Question material

and relevant to the suit, he can then order the Defendant to come personally; otherwise the Defendant will be at liberty not to appear at this stage

of the suit, but shall be bound to appear as a witness at the proper time if issues are framed.

No order as to costs.