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Miss Tashi Dorji v. Birendra Kumar Roy Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
The opposite parties (landlords) brought a suit for eviction against the petitioner on the ground of default in payment of rent since December 1974. The suit was decreed ex parte on April 21, 1977. The petitioner applied under Order IX Rule 13 of the Code of Civil Procedure ("the Code") to have that decree set aside on the ground of non-service of summons and for restoration of the suit. An application for stay of Title Execution Case No. 64 of 1977 (arising from the ex parte decree) was filed by the petitioner.
By Order No. 19 dated February 25, 1978 the Court directed the petitioner to deposit Rs. 709/- by February 27, 1978. The petitioner deposited Rs. 709/- in compliance with that order, and an order staying execution of the decree was made. April 1, 1978 was fixed for hearing of the Miscellaneous Case (the application under Order IX Rule 13). The petitioner appeared personally on April 1, 1978 as required by Order No. 19. Because of judicial transfer and lack of time, the hearing was adjourned first to June 3, 1978 and then from time to time until it was ultimately fixed for March 31, 1979.
On March 31, 1979 the learned Judge passed the impugned order which (a) adjourned the peremptory hearing to May 5, 1979 at the petitioner’s prayer, and (b) further ordered that if the petitioner failed to appear personally on May 5, 1979 the Miscellaneous Case would stand dismissed for non-compliance with Court's Order No. 19 dated 28-2-1978.
Legal Issues Presented
- Whether a Court may require the personal attendance of a party to a suit and, if so, under what provisions of the Code such a power exists (in particular the scope of Order V Rule 3, Order X Rule 4 and Order III Rule 1).
- Whether an order that anticipates non-appearance and provides for dismissal of a Miscellaneous Case in advance for "non-compliance" with an earlier order (Order No. 19) is legally valid.
- Whether the impugned order was made without the requisite jurisdiction because the Court did not first ascertain that the pleader representing the defendant was unable or refused to answer material questions (the procedural precondition in Order X Rule 4).
Arguments of the Parties
Appellant / Petitioner (Mr. M. P. Banerjee)
- Initially argued that the Court has no power to require the personal attendance of any party to a suit.
- Upon being pointed to statutory provisions (Order V Rule 3 and Order X Rule 4), he conceded that the Court does have such power in proper cases.
- Contended that the impugned order was bad because it stated that failure to appear personally on May 5, 1979 would amount to non-compliance with Court's Order No. 19 dated 25/28-2-1978. He argued the petitioner had complied with Order No. 19 by appearing personally on April 1, 1978 and depositing Rs. 709/-, so there was nothing further to comply with; dismissal for non-appearance on May 5 therefore could not be characterized as non-compliance with Order No. 19.
Respondent / Opposite Party (Mr. B. C. Dutt)
- Urged that the impugned order should not be disturbed in exercise of the revisional powers under Section 115 of the Code.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Karnataka Exports Ltd. v. Mysore Iron and Steel Ltd., AIR 1975 Kant 128 | One of the cases cited to support the general principle under Order X Rule 4 that a party can be directed to appear in person only after the pleader refuses or is unable to answer any material question relating to the suit. | The court treated this case as part of the group of authorities establishing that principle and accepted the correctness of that proposition. |
| Raghnath Matoo v. Sita Ram, AIR 1965 JandK 60 | Also cited in support of the general principle limiting the Court's power under Order X Rule 4 to situations where the pleader refuses or is unable to answer material questions. | Included by the court among the authorities confirming that the direction for personal appearance under Order X Rule 4 is permissible only after the pleader's refusal or inability to answer. |
| Satu v. Hanmant Rao Gopalrav Nimbalkar, (1899) ILR 23 Bom 318 | One of the early authorities cited for the same principle regarding the limits of Order X Rule 4. | Cited by the court as supporting the general principle; the court accepted the correctness of this line of authority. |
| Vishnu Kumar v. State Bank of Bikaner and Jaipur, AIR 1976 Raj 195 | Cited among the authorities establishing the precondition for invoking Order X Rule 4 (pleader's refusal or inability to answer). | Regarded by the court as part of the consistent jurisprudence on the point and its proposition was accepted. |
| Parmarath Gir v. Krishna Dayal Gir, AIR 1933 All 517 | Also cited as supporting the principle that Order X Rule 4 requires pleader's refusal or inability before personal attendance can be ordered. | Included in the group of cases the court relied on for stating the general principle; the court found no doubt as to correctness. |
| Abdul Jalil v. Humera Bibi, (1909) 2 Ind Cas 463 (All.) | Held (as stated in the opinion) that an order requiring a party to appear in person but without stating reasons is bad. | The court disagreed with that view to the extent it requires written reasons; it held there is no requirement in Order X Rule 4 that reasons be recorded in writing and that it is sufficient if the materials on record show the circumstances justifying the order. |
| Wali Mohammad v. Jamal Bhai, AIR 1932 Nag 135 | Held that personal appearance of the plaintiff can be required only in two cases provided in Rule 3 of Order V and Rule 4 of Order X. | The court noted this holding and acknowledged that only the two statutory situations (Order V Rule 3 and Order X Rule 4) are the sources for requiring personal attendance. |
Court's Reasoning and Analysis
The Court first analysed the statutory provisions that grant a court the power to require personal attendance. It identified Order III Rule 1 as conferring a general power to direct personal attendance, Order V Rule 3 as empowering the Court to require a party (plaintiff or defendant) to appear in person, and Order V Rule 4 as imposing territorial limitations on invoking Rule 3 (local residence and distance limitations). The Court emphasised that Rule 4 of Order X is the specific procedural provision that permits the Court to require personal attendance in the circumstances set out therein.
The Court set out Rule 4 of Order X, which allows the Court, where a pleader or a person accompanying a pleader refuses or is unable to answer any material question relating to the suit and the Court is of the opinion that the party can answer if interrogated in person, to postpone the hearing and direct that the party appear in person. Sub-rule (2) permits the Court to pronounce judgment or make such order as it thinks fit if the party fails without lawful excuse to appear in person on the appointed day.
From this statutory structure the Court drew two linked conclusions:
- Order X Rule 4 permits a direction for personal attendance only after the pleader (or permitted accompanying person) has refused or is unable to answer material questions and the Court is satisfied the party can answer if interrogated personally (i.e., the statutory precondition must be met before personal attendance is ordered).
- Under sub-rule (2) of Rule 4 the Court may pronounce judgment or pass an order only after the party actually fails to appear without lawful excuse; it cannot lawfully make an order of dismissal in anticipation of a future non-appearance.
Applying these legal principles to the impugned order, the Court found two principal defects:
- The impugned order purported to order dismissal of the Miscellaneous Case in advance — i.e., it treated future non-appearance as already resulting in dismissal — which is contrary to the statutory scheme that requires an actual failure to appear without lawful excuse before such a sanction can be imposed. An order made in anticipation of non-appearance was therefore bad under sub-rule (2) of Rule 4.
- The Court had not first ascertained that the pleader for the defendant was unable or refused to answer the questions which the Court required to be answered, i.e., the procedural precondition of Order X Rule 4 was not shown to have been satisfied. Consequently, the Court had no jurisdiction to make the impugned directive in the manner it did.
The Court further noted that the part of the impugned order which stated that the suit would stand dismissed for non-compliance with Order No. 19 was meaningless because Order No. 19 had already been complied with (the petitioner had deposited the required sum and personally appeared on April 1, 1978), leaving nothing further to be complied with under that earlier order.
The Court dealt briefly with the precedents cited. It accepted the group of authorities holding that Order X Rule 4's direction for personal appearance is available only after the pleader refuses or is unable to answer material questions. It rejected the view (attributed to Abdul Jalil) that a court must record written reasons for ordering personal attendance, reasoning that Rule 4 contains no such requirement and it is sufficient if the record as a whole discloses the necessary circumstances.
Finally, while setting aside the impugned order as bad, the Court made clear that a properly constituted order may be made in future: if the learned Judge considers any question to be material and finds that the pleader or person accompanying him refuses or is unable to answer it, he may then require the personal attendance of the defendant and proceed in accordance with the statutory procedure.
Holding and Implications
HOLDING: The Rule is made absolute and the impugned order dated March 31, 1979 is set aside.
Implications and direct consequences:
- The impugned order is quashed because (a) it purported to dismiss the Miscellaneous Case in anticipation of non-appearance contrary to Order X Rule 4(2) and (b) it was made without first satisfying the procedural precondition that the pleader had refused or was unable to answer material questions.
- The portion of the impugned order which linked dismissal to non-compliance with Order No. 19 was found to be meaningless because the petitioner had already complied with Order No. 19 (deposit and personal appearance on April 1, 1978).
- The learned Judge is, however, at liberty to require the defendant-petitioner to appear in person in future provided he first finds that the pleader (or permitted accompanying person) either refuses or is unable to answer a material question relating to the suit — i.e., the Court must follow the procedure and prerequisites laid down by Order X Rule 4 before directing personal attendance.
- No order as to costs was made.
1. In this Rule the propriety of Order No. 36 dated March 31, 1979 made by the learned Judge, 4th Bench, City Civil Court, Calcutta, is challenged.
2. The relevant facts stated succinctly are as follows:
The opposite parties who were the landlords brought a suit for eviction against the petitioner on the ground that the petitioner defaulted in payment of rent since December, 1974. The suit was decreed ex parte on April 21, 1977. Thereafter the present petitioner made an application under Order IX Rule 13 of the CPC (hereinafter referred to as the Code) for having the decree set aside on the ground of non-service of summons and for restoration of the said suit. An application for stay of the Title Execution Case No. 64 of 1977 arising out of the said ex parte decree was also made on behalf of the petitioner and the Court below by its order No. 19 dated February 25, 1978 directed the petitioner to deposit Rs. 709/- by February 27, 1978. The petitioner duly deposited Rs. 709/- in terms of the said order No. 19 dated February 25, 1978 and an order staying execution of the said decree was made and April 1, 1978 was fixed for the hearing of the Misc. Case arising out of the said application under Order IX Rule 13 of the Code. On that day the petitioner was personally present as by the said order No. 19 she was required to be present personally but as the Presiding Officer was transferred and the Judge-in-Charge had no time, the hearing was adjourned to June 3, 1978. Thereafter the hearing was adjourned from time to time and it was ultimately fixed on March 31, 1979. The impugned order is the order passed that day whereby the learned Judge on the prayer of the petitioner adjourned the peremptory hearing of the case to May 5, 1979 and further ordered that on the failure on the part of the petitioner to appear in person on that day the said Misc. Case would stand dismissed for non-compliance with the Court's Order No. 19 dated 28-2-1978.
3. Mr. M.P Banerjee, learned Advocate appearing in support of the Rule initially argues that the Court has no power to require the personal attendance of any party to a suit. When it was pointed out that in proper cases the Court has been empowered by different provisions of the Code, such as, Order V Rule 3 and Order X Rule 4 to require a party to a suit to be present in person, Mr. Banerjee conceded that it was so.
4. Mr. Banerjee further argued that the impugned order was bad inasmuch as in terms of that order the Misc. Case was to stand dismissed for non-compliance with the Court's Order No. 19 dated 28-2-1978 in the event of the failure on the part of the petitioner to appear in person. As the petitioner did personally appear on April 1, 1978 which was the date fixed by the said order No. 19 and on which date she was required to be present in person by that very order, namely, Order No. 19, the said Order was duly complied with and there was nothing more to be done by the petitioner in terms of that order. Strictly speaking, therefore, the failure on the part of the petitioner to appear in person on May 5, 1979 would not be tantamount to non-compliance with Court's order No. 19 dated 25-2-1978. In that view of the matter that part of the impugned order dated March 31, 1999 whereby it was ordered that on the failure to appear in person on May 5, 1979 the Misc. Case would stand dismissed for non-compliance of the Court's order No. 19 dated 28-2-1978 was bad.
5. As already pointed out the Court in proper cases has powers to require personal attendance of a party to a suit even though he or she may be represented by a lawyer and there may be a person competent an his or her behalf to instruct the lawyer properly. In particular, the provisions of Order V Rule of the Code and O. X R. 4 of the Cod authorise the Court in the circumstance stated therein to require a party to suit to appear in person. By the pr to Order III Rule 1 of the Code there is general power conferred on a Court to direct a party to a suit to appear in person. Further Rule 3 of Order V of the Code empowers the Court to require the defendant or plaintiff to appear in person. But Rule 4 of Order V of the Coda restricts the application of Rule 3 of Order V to such party as resides within the local limits of the Court's ordinary original jurisdiction and to a party residing without such limits provided the place of residence beyond such limits be less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than 200 miles distance from the Court-House. Further, I have already pointed out that the Court in certain circumstances has been authorised by Rule 4 of Order X of the Code to require the personal attendance of the party to a suit. Rule 4 runs thus:
“4(1). Where the Pleader or 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 date 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 judgement against him, or make such order in relation to the suit as it thinks fit.”
6. Thus, having regard to the facts and circumstances of a case if the Court requires some material questions relating to the suit to be answered and if the Pleader or the person or any such person accompanying the Pleader as referred to in Rule 2 refuses or is unable to answer such question and the Court is of opinion that the party concerned is likely to be able to answer if interrogated in person, the Court may direct such party to appear in person. Further, if in these circumstances the Court directs the personal appearance of a party the Court may pronounce judgement against him or make such order in relation to the suit as it thinks fit if such party fails without lawful excuse to appear in person. Thus, in the circumstances referred to in sub-rule (1) of said Rule 4 the Court may direct a party to appear in person but in view of the provisions contained sub-rule (2) of that Rule the Court can only pronounce judgement or pass such order as it thinks fit after the party concerned fails to appear and it does so without any lawful excuse. Obviously, therefore, when in the circumstances, stated in sub-rule (1) the Court directs a party to appear in person no judgement or order may be made in anticipation of non-appearance of the party in terms of the order directing it to appear. In the present case, the Court ordered that the case would stand dismissed for non-compliance with the Court's order. That part of the order is obviously bad in view of what has been stated above. The Court may pass an order dismissing the suit only after there is failure on the part of the party concerned to appear and such failure is without any lawful excuse. Thus, an order of dismissal made in anticipation of supposed non-appearance would be bad under said sub-rule (2).
7. Mr. Banerjee refers me to several cases, namely, Karnataka Exports Ltd. v. Mysore Iron and Steel Ltd., AIR 1975 Kant 128, Raghnath Matoo…Applicant; v. Sita Ram…Opposite Party., AIR 1965 JandK 60, Satu v. Hanmant Rao Gopalrav Nimbalkar, (1899) ILR 23 Bom 318, Vishnu Kumar v. State Bank of Bikaner and Jaipur, AIR 1976 Raj 195, Parmarath Gir v. Krishna Dayal Gir, AIR 1933 All 517, Abdul Jalil v. Humera Bibi, (1909) 2 Ind Cas 463 (All.) and Wali Mohammad v. Jamal Bhai, AIR 1932 Nag 135.
8. In the first five cases referred to above, it is laid down as a general principle that under Rule 4 of Order X of the Code, a party to a suit can be directed to appear in person only after the Pleader representing him either refuses or is unable to answer any material question relating to the suit. There can be no doubt about the correctness of this proposition. In Abdul Jalil's case (supra) it has been laid down that an order made by a Court requiring a party to appear in person but without stating reasons therefor would be bad. I find it difficult to agree with this view. There is nothing in Rule 4 of Order X requiring the Court to record its reasons in writing for ordering a party to appear in person. It would suffice if from the materials on record it appears that the circumstance in which an order requiring a parts to appear in person may be made are present. In the case of Wali Mohammad (supra) it is hold that only in two cases personal appearance of the plaintiff can be required and those two cases are provided for in Rule 3 of Order V and Rule 4 of Order X of the Code.
9. Mr. B.C Dutt, appearing for the opposite party, contended that the impugned order ought not to be disturbed in exercise of the powers under Section 115 of the Code. I find no substance in Mr. Dutt's contention inasmuch as the impugned order was made by the Court when it had no jurisdiction to pass such order without first ascertaining if the Pleader on behalf of the defendant was unable to answer the question which the Court required to be answered.
10. Further, that part of the impugned order whereby the Court directed that the suit should stand dismissed for non-compliance with Order No. 19 was wholly meaningless in view of the fact that Order No. 19 was already complied with and there remained nothing for further compliance.
11. In the circumstances aforesaid the impugned order ought to be set aside but it should be noted that the learned Judge it he considers any question to be material in relation to the suit and wants such question to be answered, he may require the personal attendance of the defendant in this case after the learned Judge finds that the Pleader representing the defendant or the person accompanying the Pleader for the purpose of instructing him either refuses or is unable to answer such material question.
12. The Rule is accordingly made absolute and the impugned order is set aside. The learned Judge, however, may direct the defendant-petitioner to appear in person in accordance with the observations made above. There will be no order as to costs.
13. Rule made absolute.
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