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First Appeal from Order No. 29 of 1961, decided on 5th February 1962.

-- Appeal lies only if judgment pronounced under O. X, r. 4, C. P. C.

By virtue of O. XLIII, r. 1 (e), Civil Procedure Code, an appeal lies only if, the Court pronounces judgment under O. X, r. 4 of the Code, but' if some other order is passed then in that case an appeal does not lie from such an order.

‑Appeal‑May be treated as revision‑Civil Pro cedure Code (V of 1908), S. 115.

‑Court has no power to strike off defence of defendant who does not appear in Court in compliance with order of Court passed under O. 111, r. 1, C. P. C.

Vaiguntathammal and another v. Valliammai Ammal and another A I R 1918 Mad. 1256; Venkatacharyulu v. Manchala yesohu and another A I R 1932 Mad. 263; Appayoo Asary v. Sornammal Fernandez A I R 1933 Mad. 821; and East Indian Railway Company v. Jit Mal Kallo Mal A I R 1925 All. 280 ref.

‑Not applicable when there is express provision in Code covering point in dispute --Civil Procedure Code (V of 1908), O. IX, r. 12.

‑Court striking off defence of defendant (ordered to appear in person under O. 111, r. 1: C. P. C. but not so appearing) instead of proceeding ex parte against him as required by O. IX, r. 12, C. P. C.‑Court acting in exercise of its jurisdiction illegally and with material irregularity -Revision competent.

A. R. Sheikh for appellant.

F. M. Anwari for Respondent No. 1.

Rahim Bakhsh for Respondent No. 3.

Dates of hearing : 22nd January and 5th February 1962.

This first appeal is directed against the order of the Administrative Civil Judge, Multan, dated the 11th of March 1961, whereby the defence of the appellant, Syed Muhammad Abdul Jalil Shah Gardezi, was struck off under Order IX, rule 12 and Order XVII, rule 3, C. P. C.

2. The facts giving rise to this appeal are as follows : On the 4th of July 1952, the Central Bank of India Instituted a suit for the recovery of Rs.3,74,836/8/‑ against Syed Muhammad Abdul Jalil Shah Gardezi and' some others. On the 4th of February 1961, the Court ordered that Syed Muhammad Abdul Jalil Shah Gardezi should appear in person in the Court on the 11th of February 1961. On that date, however, Syed Muhammad Abdul Jalil Shah Gardezi did not appear and the counsel for Syed Muhammad Abdul Jalil Shah Gardezi put In an application challenging the maintainability of the suit. The Court then adjourned the case to the 25th of February 1961, for reply and after hearing the arguments on that date, the application filed on behalf of Syed Muhammad Abdul Jalil Shah Gardezi was rejected. The case was then adjourned to the 11th of March 1961, and the Court ordered that Syed Muhammad Abdul Jalil Shah Gardezi should appear in person on that date before the Court. He, however, did not appear on that date and a medical certificate issued by Dr. Muhammad Akhtar Khan was produced before the Court which reads as follows: ‑

"Mayo Hospital.

Syed Jaleel Shah Gardezi is admitted today in the M. B. E. Albert Victor Hospital for investigation about his complaint of exertional dyspnoea and he is likely to stay for a few days.

(Sd.) Muhammad Akhtar Khan,

M. R. C. P. (London)

10‑3‑1961. Visiting physician."

The Court, however, refused to act upon this medical certificate and passed the impugned order.

3. Learned counsel for the Central Bank of India has raised a preliminary objection that an appeal does not lie against the Impugned order even if it be assumed that the order had been passed by the Court below under Order X, rule 4, C. P. C.

Order XLIII, rule 1 (e) provides that an appeal shall lie from an order under rule 4 of Order X pronouncing judgment against a party Order X, rule 4, C. P. C. is in the following terms:‑

"4. (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2 refuse or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if Interrogated in person he Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) 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."

Under this rule the Court is empowered to pronounce judgment against the person who fails without lawful excuse to appear in person on the day so appointed or to make such order in relation to the suit as it thinks fit. In view of the language used in Order XLIII, rule 1 (e), it is quite clear that an appeal lies only if the Curt pronounces judgment under Order X, rule 4, C. P. C., but if some other order is passed then in that case an appeal does not lie from such an order. I am, therefore, clearly of the opinion that an appeal under Order XLIII, rule 1 (e), C. P. C., did not lie against the impugned order.

4. Learned counsel for Syed Muhammad Abdul Jalil Shah Gardezi has, however, prayed that the memorandum of appeal may be treated as a revision petition under section 115, C. P. C. In view of the circumstances, which I am going to deal with presently, I treat this appeal as a revision petition under section 115 C. P. C. A party to a suit can be directed by the Court to appear In person either under Order 111, rule 1, C. P. C., or under Order X, rule 4, C. P. C. From the orders passed by the Court it Is not clear whether Syed Muhammad Abdul Jalil Shah Gardezi was directed to appear in person under the provisions of Order III, rule 1, C. P. C. or under Order X, rule 4 C. P. C. The impugned order, however, suggests that he had been directed to appear in person under Order III, rule 1 C. P. C., but at the same time the remarks in the impugned order that there were certain documents bearing the signatures of defendant No. I and that his counsel could not identify the same, it appears that the presence of Syed Muhammad Abdul Jalil Shah Gardezi was required under Order X, rule 4 C. P. C. However, for the purpose of deciding this revision, I will assume that Syed Muhammad Abdul Jalil Shah Gardezi had been directed to appear in person under Order III, rule 1 C. P. C. Order IX, rule 12, C. P. C. reads as follows: ‑

"Where a plaintiff or defendant, 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 so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear."

The foregoing rules of Order IX, C. P. C. provide that if a defendant does not appear the Court may proceed ex parte. Rule 12 does not provide that the Court can strike off the defence of the defendant who has been ordered to appear in person, when help does not appear in person.

Learned counsel for the Central Bank of India has contended that such an order can be passed in the exercise of the inherent jurisdiction of the Court under section 151, C. P. C. In support of this contention he has strongly relied on Vaiguntathammal and another v. Valliammai Ammal and another (A I R 1918 Mad. 1256), Venkatacharyulu v. Manchala Yesohu and another (A I R 1932 Mad. 263), Appayoo Asary v. Sornammal Fernandez (A I R 1933 Mad. 821), East Indian Railway Company v. Jit Mal Kallo Mal (A I R 1925 All. 280). In Vaiguntathammai and another v. Valliammai Ammal and another, it was held that a Court has power to direct a. party to appear fn person under Order 111, rule 1 and on his failure so to appear ex parte proceedings may be taken against him under Order IX, rule 12 C. P. C., though his vakil may be present 1n Court. This is quite In accordance with Order IX, rule 12, C. P. C. and for obvious reasons has got no bearing on the point which has been raised before me. The real question which arises in this revision before me, is whether the Court could have struck off the defence of Syed‑ Muhammad Abdul Jalil Shah Gardezi. There can be no doubt that ex parte proceedings could have been taken against him.

In Venkatacharyulu v. Manchala Yesohu and another, the defendant was ordered to deposit some amount in Court and he was warned that on failure to do so his defence would be struck off. The defendant failed to make the deposit and consequently his defence was struck off. It was held that the striking off of the defence was within the jurisdiction of the Court in the exercise of its inherent powers under section 151, C. P. C. While dealing with this question the learned Judge observed as follows: ‑

"There is no express provision in the Code of Civil Procedure which would cover a case of this kind. Rule 21, Order XXI, C. P. C. enables the Court to strike‑off the defence if default is made in the manner mentioned in that rule. Rule 16, Order VI, rule 20, Order XVI, and rule 10, Order VIII, contain some provision for punishing a party for default in a particular manner. The present case can only be brought under section 151 of the Code which deals with the inherent power of the Court to pass such orders as may be necessary in the ends of justice, or to prevent the abuse of the process of Court."

It is now well settled that a Court cannot make use of the special provisions of section 151, C. P. C., where there Is express provision in the Code of Civil Procedure which would cover the point in) dispute. In the present case, Order IX, rule 12, C. P. C. clearly covers the point. A I R 1932 Madras 263, therefore, Is not relevant for the purposes of deciding the question.

In Appayoo Asary v. Sornammal Fernandez, the defendant had been ordered under Order 111, rule 1, C. P. C., to appear before the Court. The defendant, however, did not appear and the Court struck‑out the defence of the defendant under Order IX, rule 12, C. P. C., Walsh, J. while dealing with this question remarked as follows: ‑

"The power of a Court to strike‑out defence when an order is disobeyed, is recognized in Vaiguntathammal v. Valliammai A I R 1918 Mad. 1256, Venkatacharyulu v. Manchala Yesohu A I R 1932 Mad. 263 and it is a matter within the power and discretion of the trial Court which it is not for the appellate Court to convass."

I have already referred to the two rulings on which reliance has been placed by the learned Judge in coming to the conclusion that the Court has the power to strike‑out defence when an order is disobeyed. The learned Judge himself has not expressed any opinion in the matter. As I have shown above, these two rulings do not help us in coming to the conclusion that the Court has got the power to strike‑out defence under Order IX, rule 12, C. P. C. With great respect to the learned Judge I do not see my way to accept the proposition laid down by him in this ruling.

In East Indian Railway Company v. Jit Mal Kallo Mal, the defendants were granted adjournment on condition of paying costs. The defendants, however, failed to pay the costs and the Court struck‑out the defence and proceeded ex parte. While dealing with this question, Mukerji J., referred to Order XVII, rule 1, C. P. C. which provides that while adjourning the case the Court may make such order as it thinks fit with respect to the costs occasioned by the adjournment. In that case the penalty of the defence being struck‑off in cage the defendant failed to pay the costs of the adjournment had been imposed by the Court and accordingly the learned Judge observed that this was an order clearly within the competence of the Court. This ruling, therefore, has got no bearing on the question involved before me.

5. After giving due consideration to the matter, I am clearly of the opinion that Order IX, rule 12, C. P. C., does not empower the Court to strike‑off the defence. In passing the impugned order, the subordinate Court appears to have acted in the exercise of its jurisdiction illegally and with material irregularity. I accordingly set aside the impugned order and direct the Court to proceed in accordance with law. The Court will be at liberty to require the presence of Syed Muhammad Abdul Jalil Shah Gardezi either under Order III, rule I C. P. C. or under Order X, rule 4, C. P. C. and if he fails to appear then the Court may proceed either in accordance with the provisions of Order IX, rule 12 C. P. C. or under Order X, rule 4 C P C In the circumstances of the case there will be no order as to costs.

K. B. A.

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