Sant Kumar vs Smt. Sawan Devi and Others

R.S. Pathak, C.J.—This revision petition u/s 115 of the CPC is directed against an order of the learned Subordinate Judge, Kangra, striking off the defence of the Petitioner in a suit.

In a suit for money the Petitioner filed a written statement disputing his liability to pay. The learned Subordinate Judge directed the presence of the parties. The Defendant was not present and on March 5, 1975, the case was adjourned subject to payment of costs. On March 26, 1975, the learned Subordinate Judge made an order noting that the costs had not been paid and that the Defendant had not appeared as directed. Consequently he struck off the defence, purporting to act under Order 10 Rule 4 of the Code of Civil Procedure. That order is assailed by this revision petition.

At the outset, learned Counsel for the Respondents raises two preliminary objections. He urges that an appeal lies under Order 43 Rule 1(e) of the Code and therefore the revision petition is not maintainable. He also contends that no revision petition lies because the order does not amount to a ''case decided'' within the meaning of Section 115 of the Code.

In regard to the first objection, it will be noted that Order 43 Rule 1(e) of the Code provides that an appeal lies against an order under Order 10 Rule 4 pronouncing judgment against a party. The question is whether the impugned order can be described as a ''judgment'' under Order 10 Rule 4. Order 10 Rule 4 of the Code provides:

Consequence of refusal of inability of pleader to answer.--(1) 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, refused 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 such 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.

It will be apparent from the terms of Order 10 Rule 4(2) that if a party fails without lawful excuse to appear in person on the day appointed by the Court, the Court may do either one of two things. It may pronounce judgment against him or it may make such order in relation to the suit as it thinks fit. To my mind, the expression ''judgment'' under Order 10 Rule 4(2) must mean a decision disposing of the suit it is against such a decision that an appeal has been provided for under Order 43 Rule 1(e). An appeal against an order under Order 10 Rule 4(2) pronouncing judgment is maintainable in respect of those grounds only which prevailed with the court when acting under Order 10 Rule 4(2). That distinguishes such an appeal from appeals against decrees passed under other provisions of the Code. Where the Court considers that the case is not one where judgment should be pronounced and proceeds to make some other order in relation to the suit, no appeal will lie against such an order. In the present case, the impugned order striking off the defence of the Petitioner is not a ''judgment''. It does not dispose of the suit. It is an order made in relation to the suit contemplated by the concluding words of Order 10 Rule 4(2). Learned Counsel for the Respondents urges that the expression ''judgment'' can refer to an interlocutory order and need not necessarily mean a decree. He relies on Madhuri Surendra Sahi v. Bithal Das I.L.R.All. 450. In my opinion, that case does not support the proposition put forward by learned Counsel for the Respondents. The Learned Judges there observed that the trial court could not be said to have pronounced judgment against the Defendant as it had gone on to try the suit on the merits. That is precisely what has happened in the present case. After the impugned order was made on March 26, 1975, the learned Subordinate Judge has been fixing dates for the evidence of the Plaintiff. It is apparent that he intends to try the suit. The first objection is rejected.

The second contention is that the order does not amount to a "case decided". The Allahabad High Court in (Lala) Paras Ram Vs. Smt. Noor Jahan Begum and Another, has held that where the defence of a party is struck off it amounts to a "case decided" for the purpose of Section 115 of the Code of Civil Procedure. I would respectfully follow that view.

On the merits of the case, it appears that the learned Subordinate Judge did not proceed in accordance with law. He could have made an order striking off the defence under Order 10 Rule 4(2) only if the conditions specified in that statutory provision were satisfied. It seems that counsel for the Defendant was present in Court. The learned Subordinate Judge should have determined whether the counsel refused or was unable to answer any material question relating to the suit which he, the learned Subordinate Judge, was of opinion that the Defendant ought to answer, and it was a question which the Defendant would be able to answer if interrogated in person. If he found in the affirmative, he should have postponed the hearing of the suit to a future day and should have permitted the Defendant to appear in person. It is only subsequently if the learned Subordinate Judge found that the Defendant had failed to appear in person without lawful excuse that he could exercise the jurisdiction conferred by Order 10 Rule 4(2). The order sheet is unhappily remarkable for its brevity and does not disclose whether the learned Subordinate Judge applied his mind to those considerations. In the circumstances, the impugned order must be set aside.

The revision petition is allowed with costs. The order dated March 26, 1975 passed by the learned Subordinate Juge, Kangra is set aside and the case is remanded to him for fresh decision in accordance with law.