VAIGUNTATHAMMAL Vs. VALLIAMMAN AMMAL

JUDGEMENT

(1.) Defendants Nos. 3 and 4 are the appellants in the second appeal. After the issues were settled, which was on the 27th June 1913, the District Munsif on the 15th August 1914 directed the defendants Nos. 3 and 4 to make their appearance in person on the 29th August 1914 to which date the hearing was adjourned. On the said 29th August 1914 defendants Nos. 3 and 4 failed to appear and represented through their vakil that they would refuse to appear even if they were granted time. The learned Munsif, thereupon, on the 29th August 1914, declared them ex parte and decided the suit, on the evidence of the plaintiff s husband, in plaintiff s favour. The Subordinate Judge, on appeal, confirmed this decree. Hence this second appeal.

(2.) It is to be regretted that the District Munsif did not mention the provision of law under which he acted in calling upon defendants Nos. 3 and 4 to appear in person, nor the provision of law under which, on their failure to do so, he declared them ex parte. The learned Subordinate Judge has also failed to state the provision of law under which, according to him, the Munsif acted in calling upon defendants Nos. 3 and 4 to appear in person, though he considered that the decree ex parte was granted under Order XVII, Rule 3, Civil Procedure Code. I do not see how Order XVII, Rule 3, has any application to the circumstances of this case. As my learned brother pointed out during the course of tie argument, I think the direction to defendants Nos. 3 and 4 to appear in person must be deemed to have been made under Order III, Rule 1, Civil Procedure Code. That rule empowers the Court to make an order that: any appearance required or authorized by law to be made by a party shall be made by the party in person.

(3.) Now, the appearance for 29th August 1914 was one which was authorized by law to be made by the party and such appearance for that particular date could be directed by the Court under this provision to be made in person. Then, we came to Order IX, Rule 12, which provides that if a party who has been ordered to appear in person does not appear in person, or show sufficient cause to the satisfaction of the Court for failing to appear in person, he might be treated as not appearing even though (I take it), he had engaged a pleader who had appeared and was then prepared to appear for him in the case. In this view, it is unnecessary to resort to the principle indicated by me (sitting as a single Judge) in Anni Ammal v. Muthukumara Chettiar namely that, even if not empowered by any specific provision found in the Civil Procedure Code, the Court has inherent power to order a party to appear in person if it considers it necessary to do so in the interests of justice. That Order IX, Rule 12, applies to all cases where a party has been ordered to appear in person is clear from the fact that the words "under the provisions of Section 66" (corresponding to Order V, Rule 3) "or Section 436" (correspondent to Order XXIX, Rules 2 and 3) appearing in the corresponding Section 107 of the old Civil Procedure Code have been deliberately omitted from Order IX, Rule 12. Cases decided under Section 107 of the old Code [for example, Satu v. Hanmantrao (1899) I.L.R., 23 Bom., 318] are, therefore, no authorities on the construction of Order IX, Rule 12, so far as this point is concerned. The other contentions put forward on behalf of the appellants need not be dealt with in detail, there being nothing in them. I would, therefore, dismiss this second appeal with costs. Bakewell, J.