Vaiguntathammal and Another vs Valliamman Ammal and Another

Sadasiva Ayyar, J.—Defendants Nos. 3 and 4 are the appellants in the second appeal. After the issues were settled, which was on the 27th

June 1913, the District Munsif on the 15th August 1914 directed the defendants Nos. 3 and 4 to make their appearance in person on the 29th

August 1914 to which date the hearing was adjourned. On the said 29th August 1914 defendants Nos. 3 and 4 failed to appear and represented

through their vakil that they would refuse to appear even if they were granted time. The learned Munsif, thereupon, on the 29th August 1914,

declared them ex parte and decided the suit, on the evidence of the plaintiff''s husband, in plaintiff''s favour. The Subordinate Judge, on appeal,

confirmed this decree. Hence this second appeal.

It is to be regretted that the District Munsif did not mention the provision of law under which he acted in calling upon defendants Nos. 3 and 4 to

appear in person, nor the provision of law under which, on their failure to do so, he declared them ex parte. The learned Subordinate Judge has

also failed to state the provision of law under which, according to him, the Munsif acted in calling upon defendants Nos. 3 and 4 to appear in

person, though he considered that the decree ex parte was granted under Order XVII, Rule 3, Civil Procedure Code. I do not see how Order

XVII, Rule 3, has any application to the circumstances of this case. As my learned brother pointed out during the course of tie argument, I think

the direction to defendants Nos. 3 and 4 to appear in person must be deemed to have been made under Order III, Rule 1, Civil Procedure Code.

That rule empowers the Court to make an order that:

any appearance required or authorized by law to be made by a party shall be made by the party in person.

Now, the appearance for 29th August 1914 was one which was authorized by law to be made by the party and such appearance for that

particular date could be directed by the Court under this provision to be made in person. Then, we came to Order IX, Rule 12, which provides

that if a party who has been ordered to appear in person does not appear in person, or show sufficient cause to the satisfaction of the Court for

failing to appear in person, he might be treated as not appearing even though (I take it), he had engaged a pleader who had appeared and was then

prepared to appear for him in the case. In this view, it is unnecessary to resort to the principle indicated by me (sitting as a single Judge) in

Rajagopala Pandarithar, represented by his next friend Anni Ammal Vs. Muthukumara Chettiar, namely that, even if not empowered by any

specific provision found in the Civil Procedure Code, the Court has inherent power to order a party to appear in person if it considers it necessary

to do so in the interests of justice. That Order IX, Rule 12, applies to all cases where a party has been ordered to appear in person is clear from

the fact that the words ""under the provisions of Section 66"" (corresponding to Order V, Rule 3) ""or Section 436"" (correspondent to Order XXIX,

Rules 2 and 3) appearing in the corresponding Section 107 of the old CPC have been deliberately omitted from Order IX, Rule 12. Cases

decided u/s 107 of the old Code [for example, Satu v. Hanmantrao ILR (1899) 23 Bom. 318 are, therefore, no authorities on the construction of

Order IX, Rule 12, so far as this point is concerned. The other contentions put forward on behalf of the appellants need not be dealt with in detail,

there being nothing in them. I would, therefore, dismiss this second appeal with costs.

Bakewell, J.

A party is bound to attend the Court whenever so required, and although ordinarily he may fulfil this obligation by means of an agent, if the

Court so directs he is bound to attend in person. (Order III, Rule 1, Civil Procedure Code.) If the evidence of the party is required, a summons

can be issued in the same manner as to a stranger to the suit; but when the parties are before the Court either personally or by their pleader it is

competent for the Court to direct them orally to attend without a summons. The provisions of Order IX, Rule 12, are perfectly general and are

evidently framed for the purpose of dealing with obstructive tactics and of enabling the Court to proceed against any party who does not attend.

The diary in the present case shows that there were numerous adjournments for the purpose of settlement and for other reasons and it may well

have been that the District Munsif thought that he should put a stop to these tactics and have the parties before him personally. I think that he was

perfectly right in proceeding under his rule. With regard to the provisions of Order X on which the learned vakil for the appellants relied, It think

that they relate primarily to the ascertainment of points in dispute and may point out that they do not refer to the administration of an oath or

provide for the examination or cross-examination of parties. I must respectfully dissent from the decision in Satu v. Hanmantrao ILR (1899) 23

Bom. 318. With regard to the merits of the case, the plaintiff set up a possessory title under which she and all the defendants claimed the property

as owners in common, and I think the evidence was sufficient to support the plaintiff''s claim. I agree that this second appeal should be dismissed

with costs.