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.