SAMPATH Vs. ABINAYA

JUDGEMENT

(1.) These three appeals arise out of the judgment of the Additional District Court, Namakkal made in O.S.No.28 of 2008, wherein, the learned District Judge had, purportedly, in exercise of power under Order X Rule 4 of the Code decreed the suit without considering the evidence already on record and without answering the issues that were framed for trial.

(2.) The suit for partition was laid by the 1 st respondent contending that the suit properties were ancestral properties and as a daughter of the 1st defendant she is entitled to a share. The said suit was resisted by the father who figured as 1st defendant as well as the purchasers from the father. It appears from the records that the plaintiff's evidence was completed. DW1 was also examined and DW2 was in the box. There was some delay in cross-examination of DW2, since, the witness did not appear and on some days, the witness was present and the suit was adjourned on application. The fact that this Court had issued certain directions for disposal of the suit within three months impelled the learned District Judge to take the shortcut by resorting the Order X Rule 4 of the Code of Civil Procedure to decree the suit. This kind of disposal is very unfortunate. Order X Rule 4 of the Code of Civil Procedure would not apply, on the given facts. The provisions of Order X are meant for empowering the Court to examine a party by the Court at the first hearing of th suit. Order X Rule 2 reads as follows:-

(3.) While order X Rule 2 vests the power in the Court to examine a party or a companion of the party at the first hearing of the suit, the consequence of refusal or inability to answer the questions during such examination conducted under Order X Rule 2 of the Code of Civil Procedure is set out in Order X Rule 4 of the Code of Civil Procedure. Therefore, the consequence under Order X Rule 4 will flow only from an action that is taken under Order X Rule 2 viz., examination of a party at the first hearing and not otherwise. The exercise of power by the learned Additional District Judge under Order X Rule 4 during trial is, to our mind, completely erroneous.