TASHI DORJI Vs. BIRENDRA KUMAR ROY

JUDGEMENT

(1.) In this Rule the propriety of Order No. 36 dated March 31, 1979 made by the learned Judge, 4th Bench, City Civil Court, Calcutta, is challenged.

(2.) The relevant facts stated succinctly are as follows : The opposite parties who were the landlords brought a suit for eviction against the petitioner on the ground that the petitioner defaulted in payment of rent since December, 1974. The suit was decreed ex parte on April 21, 1977. Thereafter the present petitioner made an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) for having the decree set aside on the ground of non-service of summons and for restoration of the said suit. An application for stay of the Title Execution Case No. 64 of 1977 arising out of the said ex parte decree was also made on behalf of the petitioner and the Court below by its order No. 19 dated February 25, 1978 directed the petitioner to deposit Rs. 709/-by February 27, 1978. The petitioner duly deposited Rs. 709/- in terms of the said order No. 19 dated February 25, 1978 and an order staying execution of the said decree was made and April 1, 1978 was fixed for the hearing of the Misc. Case arising out of the said application under Order IX Rule 13 of the Code. On that day the petitioner was personally present as by the said order No. 19 she was required to be present personally but as the Presiding Officer was transferred and the Judge-in-Charge had no time, the hearing was adjourned to June 3, 1978. Thereafter the hearing was adjourned from time to time and it was ultimately fixed on March 31, 1979. The impugned order is the order passed that day whereby the learned Judge on the prayer of the petitioner adjourned the peremptory hearing of the case to May 5, 1979 and further ordered that on the failure on the part of the petitioner to appear in person on that day the said Misc. Case would stand dismissed for non-compliance with the Court's Order No. 19 dated 25-2-1978.

(3.) Mr. M. P. Banerjee, learned Advocate appearing in support of the Rule initially argues that the Court has no power to require the personal attendance of any party to a suit. When it was pointed out that in proper cases the Court has been empowered by different provisions of the Code, such as, Order V Rule 3 and Order X Rule 4 to require a party to a suit to be present in person, Mr. Banerjee conceded that it was so.