RAGHUNATHI Vs. SUBKARAN MISIR AND ORS

JUDGEMENT

(1.) After hearing learned Counsel for the parlies I am of opinion that this revision is incompetent as the impugned order does not amount to "a case decided" within the meaning of Section 115 of the Code of Civil Procedure.

(2.) The facts are these. The Defendant-applicant was Defendant No 2 to the suit. She filed a written statement against the claim of the Plaintiff. A date was fixed for settlement of issues. Defendant No. 2 was called upon trader the provisions of Order X, Rule 4(1) of the Code to present herself in person to answer certain questions which the court considered material for the purposes of the suit. Time was taken by Defendant No. 2 on ground of illness. The court called upon her to produce medical certificate. The required medical certificate was not produced by her. The result was that ultimately the court, acting under the provisions of Order X Rule 4(2) of the Code, directed that the written statement of Defendant No. 2 be struck off. It is against this order that the present revision has been filed.

(3.) Order X, Rule 4(2) of the Code says that if the 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. Under this provision of law two options are given to the court. It may pronounce judgment against the contumaceous party, or it may make such order in relation to the suit as it thinks fit. If the court chooses the first option, namely, if it pronounces judgment against the contumaceous party, such an order is appealable under Order XLIII, Rule 1(e) of the Code. But if judgment is not. pronounced and the court makes any other order in relation to the suit as it thinks fit under the provisions of Order X, Rule 4(2), such an order would not be appealable under Order XLIII, Rule 1(e). The question which has got to be considered is whether such an order is open to revision.