K VENKATA SURYANARAYANA PATNAIK Vs. ROYAL CHIT FUND

JUDGEMENT

(1.) IN T. M. S. No. 6 of 1967 the learned Subordinate Judge passed the following order on 29-4-1967:-" defendant 2 files petition for time as per the reasons stated therein. Petition is allowed. To 21-6-1967 for settlement of issues on examination of parties. Written statement in the meantime. " on 21-6-1967 defendant No. 2 filed written statement and filed hazira for his examination under Order 10, Rules 1 and 2, C. P. C No steps were taken by the plaintiff that day. The Court accordingly dismissed the suit for default. On the very day the plaintiff's advocate filed an application for restoration of the suit, a case was registered under Order 9, Rule 9, C. P. C. There was no challenge regarding the existence of sufficient cause for the plaintiff's absence on 21-6-1967. The M. J. C. was contested on the question of maintainability of the application for restoration of the suit under Order 9, Rule 9, C. P. C. After having heard the matter fully, the learned Subordinate Judge restored the suit. Against this order the civil revision has been filed.

(2.) MR. Ramdas raises two contentions: (a) The suit having been dismissed under Order 10, Rule 4 (2), C. P. C. , order 9 has no application; (b) The order dated 21-6-1967 was passed under Order 17, Rule 3, c. P. C. , and as such, Order 9 has no application to it. Both the contentions require careful examination.

(3.) ORDER 10, C. P. C. , relates to examination of parties by the Court. Rule 1 is for the ascertainment whether allegations in the pleadings are admitted or denied. Rule 2 prescribes oral examination of the party or companion of the party. Rule 3 lays down that the substance of the examination shall be reduced to writing by the judge and shall form part of the record. Rule 4 (2) enacts that if such 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. Mr. Ramdas contends that 21-6-1967 was fixed for examination of the parties. The plaintiff absented himself without lawful excuse and as such the Court pronounced the judgment that the suit was dismissed for default. If his contention that Order 9 has no application to an order under Order 10, Rule 4 (2) is sustainable, it must necessarily be held that the dismissal of the suit on account of non-appearance of the plaintiff for non-examination (examination r) under Order 10 stands on a higher footing than the dismissal of the suit of the plaintiff when the suit is dismissed for default due to absence of the plaintiff and his witness on the date of trial. There is no justification or any provision in the Code for such a construction. Absence of the plaintiff on the date fixed for examination under Order 10, C. P. C. , entails dismissal of the suit in the same manner as dismissal of the suit on any other ground due to failure of the plaintiff to be present at the trial. Mr. Ramdas placed reliance on AIR 1921 Mad 417, K. P. Chengaru Chandu v. P. Chengara Raman Nayar and AIR 1959 Madh Pra 5, Sewaram Udaji v. Munna Moti, in sup port of his contention that Order 9 has no application to the dismissal of the suit under Order 10, Rule 4 (2), C. P. C. Both these decisions are distinguishable. In these cases the plaintiff absented, but his advocate was present in Court, and did not endorse no-instruction. Appearance of the advocate for the party may reasonably be construed as appearance of the plaintiff. In such a case it cannot be stated that the suit was dismissed for default of the plaintiff. Even if such an expression is inadvertently used by the Court, it merely means that the suit was dismissed in presence of both the parties. Obviously, to such a case Order 9 has no application. My view is fully supported by AIR 1917 All 136, B. Chunni Lal v. Chakerpan; AIR 1932 All 595, Nandan Sahu v. Hari Shankar and AIR 1918 Oudh 429 Sadeshwar Narain v. Qadir Bakhsh. The learned Subordinate Judge rightly held that Order 9 has application for setting aside the order dated 21-6-1967.