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Raghnath Matoo v. Sita Ram
Factual and Procedural Background
This proceeding is a defendant's revision application against an order dated 27-6-64 of the District Judge, Srinagar. The impugned order directed the defendant to appear in person before the court for examination under Order 10 of the Code of Civil Procedure (CPC). Underlying litigation: a suit for ejectment and recovery of Rs. 3,468/8 instituted on 11 February 1960. A preliminary issue was raised as to whether the defendant was an agriculturist; the lower court held the defendant to be an agriculturist on 2-2-62. The lower court sought to record statements under Order 10 CPC to assist in framing issues. On 27-6-64 the defendant's counsel submitted an application stating that the pleader was fully conversant with the facts and was prepared to make the statement on behalf of the defendant, that the defendant was ill and could not attend but offered to appear later as his own witness. The District Judge rejected the application, noted absence of a medical certificate, and directed production of the defendant in person on the next date or proceedings under Order 10 Rule 4 CPC would follow. The revision challenges whether the requirements of Order 10 Rule 4 CPC were met and whether the court could compel personal attendance in the circumstances.
Legal Issues Presented
- Whether the penal consequences in sub-rule (2) of Order 10 Rule 4 CPC (i.e., ordering personal attendance and potential judgment for non-appearance) can follow unless, under sub-rule (1), the party's pleader refuses or is unable to answer material questions relating to the suit.
- Whether Section 8 of the relevant Agriculturists' Relief Act (ARA) (corresponding to Section 12 of the Dekkhan ARA) authorizes the court to order personal attendance of an agriculturist-defendant for examination under Order 10 Rules 2 and 4 CPC prior to framing issues.
- Whether, in the present facts (where the defendant's pleader asserted he was prepared and able to answer all material questions and the defendant was indisposed), the court could compulsorily order the defendant to appear in person immediately for examination under Order 10 CPC.
Arguments of the Parties
Defendant's Counsel's Position
- The defendant's pleader stated he was fully conversant with the facts of the case and was prepared to be examined on behalf of the defendant in court.
- The defendant was unable to attend because he was ill; he offered to appear as his own witness later, in due course, after issues were framed.
- An express application was made that the pleader be examined instead of compelling the defendant to attend personally at that stage.
Argument Advancing a Broad Reading of the ARA (as Referred to by the District Judge / Opposing Counsel)
- The District Judge referred to Section 8 of the State ARA (corresponding to Section 12 of the Dekkhan ARA) and treated it as authorizing the court to require personal attendance of an agriculturist-defendant to examine the parties and enquire into issues such as fraud, mistake, undue influence and to take accounts.
- One argument advanced (attributed in the opinion to "Mr. ???") urged that Section 8 should be read as empowering the court to order personal attendance of a party so that the party could make a statement under Order 10 CPC and thereby enable the court to determine whether any defence (fraud, misrepresentation, etc.) existed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sadeshwar Narain v. Qadir Bakhsh, AIR 1918 Oudh 429 | Personal attendance of parties can be ordered only when the pleader is unable to or refuses to answer questions put by the court. | Quoted as authority supporting the proposition that Order 10 personal attendance power is limited to situations where the pleader refuses or is unable to answer material questions. |
| Parmarath Gir v. Krishna Dayal Gir, AIR 1933 All 517 | The court's power under Order 10 is limited; personal attendance can be directed only where the party's pleader or recognized agent refuses or is unable to answer a material question. | Relied upon to reinforce the restricted scope of the court's power to compel personal attendance under Order 10. |
| Satu v. Hanmant Rao, ILR 23 Bom 318 | Where a plaintiff represented by a pleader was summoned to give evidence and failed to attend, a decree passed for non-attendance was set aside because the court had no power to make such an order under s.120 (corresponding to O.10 r.4) unless the pleader had refused or was unable to answer material questions. | Applied to show that a court cannot issue coercive orders for personal attendance under the corresponding provision unless the pleader cannot or will not answer material questions. |
| Mt. Begam v. Topanmal Hiranand, 4 Ind Cas 693 (Sind) | Held that Ss.7 and 12 of the Dekkhan ARA (corresponding to Section 8 of the State ARA) make it obligatory upon the court to examine the parties as witnesses for the purposes indicated in the Act. | Noted by the court but distinguished: the authority did not state that the penal consequences of Order 10 r.4 should follow where a party refuses to be examined while his pleader is able and prepared to answer. Therefore, the precedent did not assist the respondent's position on compulsion prior to framing issues. |
Court's Reasoning and Analysis
The court began by identifying the statutory scheme in Order 10 Rules 2 and 4 CPC. Rule 2 permits the court to examine any party appearing in person or any person present who can answer material questions, including a person who accompanies the pleader. Rule 4(1) contemplates that if the pleader or such accompanying person refuses or is unable to answer any material question which the court thinks the party ought to answer and is likely to be able to answer if interrogated in person, the court may postpone the hearing and direct that the party appear in person. Sub-rule (2) provides penal consequences for failure to appear without lawful excuse.
The court held that the penal consequences of sub-rule (2) of Rule 4 can only follow if one of the conditions in sub-rule (1) is satisfied — namely, that the party's pleader either refuses or is unable to answer material questions. This is a textual reading of the rule and was described as a plain proposition of law.
The court reviewed authorities (Sadeshwar Narain, Parmarath Gir, Satu v. Hanmant Rao) to confirm the limited scope of the court's power under Order 10: personal attendance may be ordered only when the pleader is unable or refuses to answer material questions. Those authorities were treated as directly supportive of the proposition.
The District Judge's reliance on Section 8 of the State ARA (corresponding to Section 12 of the Dekkhan ARA) was examined. The court analyzed the language of that statutory provision, noting that the section uses the phrase "as witnesses" and requires examination of parties as witnesses for the purposes of ascertaining defences (fraud, mistake, undue influence, etc.) and for taking accounts. The court concluded that the provision contemplates examination of parties as witnesses after issues have been framed; it does not, by its plain language, empower the court to compel personal attendance for examination under Order 10 Rules 2 and 4 prior to framing issues where the pleader is able to answer.
The court further noted that Section 18 of the ARA makes the Code of Civil Procedure apply to proceedings under the ARA; therefore Order 10 applies and its requirements (including the limitation in Rule 4) remain applicable to suits under the ARA. Consequently, the penal consequences of Order 10 Rule 4(2) can be invoked only when the pleader is unable or refuses to answer material or relevant questions.
Applying these principles to the facts, the court observed that the defendant's pleader had expressly stated his readiness and ability to answer all material questions and undertook to produce the defendant later as a witness after issues were struck. On that basis, the court concluded that the District Judge should not have compelled the defendant to appear in person at that stage.
The court directed that the District Judge should proceed to examine the defendant's pleader; if, in the Judge's opinion, the pleader is unable to answer any question material and relevant to the suit, the Judge could then order the defendant's personal attendance. The revision therefore set aside the impugned order.
Holding and Implications
Holding: The revision succeeds: the impugned order of the District Judge directing the defendant to appear in person on 27-6-64 is SET ASIDE. The District Judge is directed to examine the defendant's pleader first; only if the pleader is unable, in the Judge's opinion, to answer material questions may the Judge order the defendant to appear personally. The defendant remains bound to appear as a witness at the proper time if issues are framed. No order as to costs was made.
Implications:
- Immediate effect on the parties: the defendant is not compelled to attend in person at the stage when his pleader is able and willing to answer material questions; the pleader must be examined first.
- Procedural consequence for the lower court: proceed to examine the pleader under Order 10; only if the pleader cannot or will not answer material questions may the court invoke the power to order personal attendance and apply Order 10 Rule 4(2) consequences.
- No broader precedent beyond the application of existing rules was created by this decision; the court applied established principles constraining the exercise of the personal-attendance power under Order 10 CPC. (The opinion does not purport to lay down a new legal principle beyond this application.)
1. This is a defendant's revision application directed against the order of the learned, 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 O. 10 of the CPC 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 raises, in the case. The defendant was held to be as agriculturist by the lower court on 2-2-62. Later on the case has been going on and now the court desires to record the statement at the parties Page: 61under O. 10 of the CPC. When the court ordered the defendant to appear in person for his examination under O. 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 O. 10 r. 4 of the CPC. The learned Judge states that no certificate of ill health was presented by the defendant. As would presently appear, the non-production of the certificate by the defendant would the of no consequence 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 O. 10 r. 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.”
2. 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, Use 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.”
3. 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 r. 4 of O. 10 of the CPC, but the question is whether the requirements of rule 4 are satisfied in the present case. The requirements of sub-r. (1) of r. 4 of O. 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-r. (2) of rule 4 cannot at all ensue. No authority need be cited, in support of this proposition as it is plain enough, but none the less the following authorities may safety be quoted in this behalf.
4. Sadeshwar Narain v. Qadir Bakhsh, AIR 1918 Oudh 429 which is a Division 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.
5. in Parmarath Gir v. Krishna Dayal Gir, AIR 1933 All 517 Niamatullah, 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.
6. 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 under 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 under s. 120 unless the pleader had refused to or was unable to answer a material question it may be noted that s. 120 corresponds to O. 10 r. 4 of the CPC.
7. The learned District Judge has, however, referred to Section 8 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 S. 3 cl. (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, snail 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 (it 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.”
8. The learned District Judge thinks that 119 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 account between such parties provided 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 therefore the question of appearing as a witness does not at all arise unless issues are framed.
9. Mr. ??? however, argued that it was necessary that this section should be read as empowering Page: 62the Court to order a party to appear in person in a court in order to make a statement under O. 10 of the CPC, so that the court would IInd whether any defence is available to the debtor by way of fraud, mis-representation 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 have 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 he examined under the provisions of O. 10 Rr. 2 and 4 of the CPC. Section 18 of the ARA makes the Code of Civil Procedure apply to proceedings under the ARA. Therefore O. 10 also will apply to cases tried under the aka and the penalty contemplated by O. 10 R. 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.
10. Here is an express prayer in the form of an application by the defendant's learned counsel that he is prepared to answer all 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 after the issues are struck. I am therefore definitely of the view that the defendant cannot be compelled under the provisions of O. 10 Rr. 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.
11. The provisions of the aka have not in any way abrogated this order or any rule thereof, I have, however, come across an authority reported as Mt. Begam v. Topanmal Hiranand, 4 Ind Cas 693 (Sind) which lays down that Ss. 7 and 12 of the Dekkhan ARA (corresponding to S. 8 of the State ARA) 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 will 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 refuses to be examined in person before the framing of issues under the provisions of O. 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 O. 10 R. 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.
12. The order of the learned District Judge under revision is therefore set aside and he is directed to proceed with the 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.
KH/AGJ/V.B.B
13. Order accordingly.
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