BHUPATHIRAJU SURYANARAYANARAJU Vs. BANTUPALLI APPANNA

JUDGEMENT

(1.) Two suits in relation to which the present revision petitions are filed, are money suits on the foot of a promissory note brought by the plaintiff before the learned District Munsif on small cause side. The defendants admitted the execution of the pronotes, but denied that they were supported by consideration and contended that they were mere fictitious transactions. When the case was called on for hearing, the defendants made up their mind to abide by the oath of the plaintiff and requested the Court to call upon the plaintiff to take special oath. The plaintiff was not prepared to take the same and consequently the petition of the defendants was dismissed. Then the defendants applied for the summoning of the plaintiff as a witness on their behalf. This petition was made under Section 32 and Order 16 Rule 10, Civil Procedure Code. It was stated therein, that even if the plaintiff says in open court without entering into the witness-box that the suit amounts were due, a decree may be granted in favour of the plaintiff. Their request however was that the plaintiff should be summoned as a witness. The court under the circumstances, did not issue orders either under Section 32 or Order 16 Rule 10, Civil Procedure Code but purporting to act under Order 3 Rule 1, Civil Procedure Code called upon the plaintiff to be present in person. The plaintiff filed an application requesting the court to dispense with his personal appearance, as he had lost his eldest son recently, and was in grief and that he suffered from high blood-pressure and hyper tension, which disabled him from appearing in person in the Court. This application was supported by an affidavit and a medical certificate. If was opposed by the defendants and after the medical evidence was taken, the Court directed that the plaintiff may enter his appearance two months afterwards i. e., on 15-12-1955. On that date, the plaintiff made an application that he should be examined on commission, as he is in the same state of health as before. The defendants in response to it. filed a petition requesting that the suit should be dismissed for non-appearance of the plaintiff, and stated that the plaintiff was hale and healthy and was willfully avoiding appearance in court. It does not appear from the order that any evidence was taken in sup-port of the petition that the plaintiff was still in the same state of health as before. Since he was absent, the learned Munsif purporting to act under Order 9 Rule 12, Civil Procedure Code dismissed his suit with costs. It is against this order that the plaintiff lies come in revision.

(2.) There can be no doubt if the order requiring the personal presence of the plaintiff was validly passed, the consequences of Order 9 Rule 12, would naturally follow provided the conditions mentioned therein are satisfied.

(3.) The learned counsel on behalf of the petitioner argues that when the defendants themselves had applied under Order 16 Rule 10 and Section 32 C. P, C., it was but proper that the summons were issued accordingly and the defaults be dealt with in the manner contemplated by those provisions and that the court ought not to have resorted to penal provisions, which are intended only for extreme cases. In support of this argument, he has referred me to Ayya Nadan v. Thanammal. AIR 1920 Mad 213. Apnavoo Asary v. Sornammal Fern-andez, 65 Mad LJ 734: (AIR 1933 Mid 821) and Kishori Lal v. Chunni Lal, ILR 31 All 116.