Vasavan vs Unnikrishnan

M.M. Pareed Pillay, J.—Defendant (Appellant) challenges the order of the II Additional Sub Judge, Trivandrum directing him to furnish security for Rs. 80,000 so as to ensure his prompt appearance before the Court, failing which he would be committed to civil prison.

Plaintiff (Respondent) filed petition under Order 38, Rule 1 CPC for issuance of warrant to arrest the Defendant and bring him before the Court to show cause why he should not furnish security for his appearance. Plaintiff contended that the Defendant does not have permanent places of residence or immovable property within the jurisdiction of the Court and if he leaves the local limits of the jurisdiction of the Court he (Plaintiff) would be put to irreparable loss and injury. Defendant denied the allegation that he would not be available in the Court.

Order 38, Rule 1 CPC enables the Court to call upon the Defendant to furnish security for his appearance. This can be done at any stage of the suit when the Court is satisfied by affidavit or otherwise that there exists sufficient grounds. Plaintiff has filed the petition under Order 38, Rule 1 on the ground that the Defendant is about to abscond or leave the local limits of the jurisdiction of the Court. Plaintiff is entitled to file such petition if he apprehends that the Defendant is about to abscond or leave the local limits of the jurisdiction of the Court. Order 38, Rule 1 can be invoked by the Plaintiff in any suit not referred to in Section 16, Clauses (a) to (d). Clauses (a) to (d) of Section 16, relate to suits for recovery of immovable property with or without rent or profits, suit for partition of immovable property, suit for foreclosure, sale or redemption of charge upon immovable property, suit for determination of any other right to or interest in immovable property. Except suits in the aforesaid categories it would be open to the Plaintiff to call upon the Defendant to furnish security for his appearance whenever situations demand.

As satisfactions of the Court is indispensable for obtaining the order under Order 38, Rule 1, it is incumbent upon the Plaintiff to establish his case. The proviso to Rule 1 makes the position clear that if the Defendant pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the Plaintiff''s claim, Defendant shall not be arrested. Such sum shall be held in deposit by the Court until the suit is disposed of or until further orders. Before exercising the power conferred under Order 38, Rule 1 the Court has necessarily to be satisfied itself of a prima facie case in favour of the Plaintiff. Adequacy of materials is the sine qua non for the exercise of the power by the Court. In other words, when the court is satisfied that the Defendant is likely to commit any of the acts mentioned under Rule 1 it can issue directions as envisaged under Order 38.

Defendant has entered appearance before the Court. He has filed counter affidavit. In the counter affidavit he stated that he has no intention to evade the process of the Court so as to prevent any decree being executed against him. He asserted that he would attend the Court as and when required and would always abide by the Court''s orders. In the counter affidavit it is stated that he resides with his family at Trivandrum. The allegation that be would not be available within the jurisdiction of the Court is denied. It has not been made out that on any single occasion be failed to appear before the Court.

Plaintiff could not establish that the Defendant was about to abscond or leave the local limits of the jurisdiction of the Court for issuing any direction under Order 38, Rule 1. In view of the undertaking of the Defendant that he would appear before the Court as and when required and also in view of the paucity of material to hold that he is likely to abscond or leave the jurisdiction of the Court it has to be held that the impugned order cannot be sustained.

The impugned order is set aside. Defendant should appear before the Court as and when required. C.M.A. stands allowed.

The II Additional Sub Judge, Trivandrum is directed to dispose of the suit with utmost expedition and at any rate before 31st August 1994. Parties shall appear before the trial Court on 30th May 1994.