RUGHNATH MATOO Vs. SITA RAM

JUDGEMENT

(1.) THIS is a defendants revision application directed against the order of the learned District Judge Srinagar dated 27 -6 -64 whereby the learned Judge has ordered the counsel for the petitioner to cause the appearance of the defendant in person before the court below for examining the defendant under O. 10 Civil P. C.

(2.) IT appears that a suit for ejectment and for recovery of a sum of Rs. 3468/8 was instituted against the defendant as far back as 11th February 1960 A preliminary issue with regard to the fact whether the defendant was an agriculturist was raised in the case. The defendant was held to be an agriculturist by the lower court on 2 -2 -62. Later on the case has been going on and now the court desires to record the statement of the parties under O. 10 Civil P. C. When the court ordered the defendant to appear in person for his examination under O 10, the defendants learned counsel put in an application on 27 -6 -64 to the effect that the court had ordered the parties to come to the court to make a statement, the Advocate of the defendant was fully conversant with the facts and was prepared to make a statement on behalf of the defendant. The defendant could not come as he was ill, but he offered to appear as his own witness in due course. The learned District Judge rejected this prayer of the defendant and directed the counsel for the defendant to produce the defendant in person on the next date of hearing, otherwise proceedings against him would be taken under O. 10 r. 4 of the Civil P C. The learned Judge states that no certificate of ill health was presented by the defendant. As would presently appear, the non -production of the certificate by the defendant would be of no consequence in disposing of the matter in controversy between the parties. At the present monent, as is clear, the learned court wanted to examine the defendant under O. 10 r. 2 of the Civil P. C in order to enable the court to frame the issues in the case. This rule reads as under : -

(3.) SO the penal consequences of non -appearance by a party who is directed by the court to appear are contained in subrule (2) of r 4 of O. 10 of the Civil P. C, but the question is whether the requirements of rule 4 are satisfied in the present case. The requirements of sub -rule (2) of r. 4 of O. 10 are that the pleader of the party who is ordered to appear in person should refuse to answer any material question relating to the suit, or that he should be unable to answer such question. Unless either of the two conditions are satisfied, the penal consequences as given in sub -r. (>) of rule 4 cannot at all ensue. No authority need be cited in support of this proposition as it is plain enough, but nonetheless the following authorities may safely be quoted in this behalf.