DURGA CHARAN HANSDAH Vs. SURAJA MANI STELLA KHUJUR

JUDGEMENT

(1.) THIS appeal is directed against the order dated 3. 9. 2007 and also the order dated 11. 12. 2007 passed by the learned Single Judge whereby the learned Single Judge referred to earlier order for personal appearance of the defendant No. 1/appellant herein for recording of his statement under Order 10 cpc and for non-compliance of the said order, direction for issuance of bailable warrant in the sum of Rs. 5000/- was given. In the order dated 3. 9. 2007, the learned Single Judge referred to the earlier order dated 10. 7. 2007 issuing direction to the defendant No. 1 to appear before the Court for recording of his statement. Reference was also made to the order passed on the next date, i. e. , 20. 07. 2007 when the statement of the counsel for the defendant No. 1 was recorded to the effect that his client does not wish to come to the Court.

(2.) SINCE the defendant No. 1 did not appear before the Court despite the orders passed by the Court for recording his statement under Order 10 CPC before the Court, the Court directed that he should appear before the Court on the next date, i. e. , on 11. 12. 2007 for recording his statement. When on 11. 12. 2007, the matter was again listed before the Court, the defendant No. 1 again did not appear which fact was recorded. The Court considered the pleadings of the parties and held that since a preliminary objection about the territorial jurisdiction of the Court is taken by the defendant No. 1, therefore, his statement is required to be recorded before his objection with regard to want of territorial jurisdiction could be taken up for final hearing. Consequently, it was held that the defendant No. 1/appellant should appear for recording his statement under Order 10 CPC. The Court also recorded that he had earlier failed to appear before the Court despite directions for his appearance given on 10. 7. 2007 and 3. 9. 2007. The Court considered the statement of the counsel appearing for the defendant No. 1 and found that no reasonable excuse had been furnished on behalf of defendant No. 1 as to why defendant No. 1 had not appeared before the Court. Accordingly, a direction was issued for issuance of bailable warrant for ensuring the presence of defendant No. 1 before the Court. Being aggrieved by the said orders, this appeal is filed on which we have heard learned counsel appearing for the appellant.

(3.) COUNSEL for the appellant relied upon the provision of Order 10 cpc and after making special reference to Rule 4 thereof submitted that if a party fails without lawful excuse to appear in person on the day so appointed for personal appearance, the Court could pronounce judgment against him or could make such order in relation to the suit as it thinks fit. Relying on the said provision, it is submitted by the counsel that directing for personal appearance and issuance of bailable warrant against the defendant No. 1 cannot be said to be an order passed in relation to the suit. A similar contention was also raised before the learned Single Judge who considered the same but rejected the said contention on the ground that such an order directing for his personal appearance in Court for recording his statement having not been complied with, a bailable warrant could be issued for ensuring his presence in Court and that the same should be held to be an order which could be passed in terms of Order 10 rule 4 (2) CPC. It is held by the learned Single Judge that the orders which are passed are orders passed under the second option which is available to the court. Reference was also made by the learned Single Judge to the decision of the Supreme Court in Jagraj Singh Vs. Birpal Kaur; reported in (2007) 2 SCC 564, wherein the Supreme Court in a matrimonial case upheld the order for issuance of non-bailable warrants to secure presence of the defendant through warrants.