- (1.) The Petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 12.03.2009 (Annexure P1) passed by the trial court dismissing the suit of the Petitioner- Plaintiff under Order 10 Rule 4 Code of Civil Procedure.
(2.) At the very outset, learned Counsel for the Petitioner has submitted that the suit could not be dismissed for his non-appearance and the Petitioner- Plaintiff could also show his lawful explanation for his nonappearance. At the same time, the court was also to record its satisfaction that some questions could not be replied by the counsel, then the party could be asked to appear and if the party had answered, the controversy could be resolved. In this regard, it was further urged that the counsel for the Plaintiff never expressed his unwillingness to answer the questions which the court wanted to elicit, therefore, the suit could not be dismissed. He has referred to the judgment delivered in case M/s Ron Son Export House Pvt. Ltd. and Anr. v. The New Bank of India Ltd., 1989 AIR(P&H) 287 wherein it was observed as under: 5. Having given my thoughtful consideration to the entire matter, though I am inclined to accept the stand of the learned Counsel for the Appellants that in the instant case till their counsel in the trial Court had either expressed his unwillingness or refusal to answer the questions which the Court wanted to elicit, there was no justification either to summon the Defendants for the said purpose or to strike off their defence, yet the contention of the learned Counsel that there should have been formulation of the questions which the Court wanted to put to the Defendants deserves to be rejected. No doubt, it is true that the intention of the rule is to enable the Court not only to get obscure points clearly by obtaining the information from either of the parties but also, if possible, to get admissions so as to narrow down the issues raised in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly, before the Court can justifiably pass an order striking off the defence of a party. It is abundantly clear from the phraseology of the rule itself that before the Court requires the personal appearance of a party, it should essentially examine the parties' counsel and if it still feels that further elucidation of any point or question is necessary it may call the party in person. As has been observed by this Court earlier in Shri Sarasrwati Spinning Mills Bhiwani v.Gheru Lal Bal Chand Abohar, 1981 AIR(P&H) 299 normally the admission or denial of a document is done by the counsel for the parties and it is only when the counsel is unable to do that the necessity may arise for summoning the party in person. The trial Court appears to have completely ignored this aspect of the matter while striking off the defence of the Defendant Appellants. I, therefore, find it impossible to sustain the approach and the conclusion, i.e. the granting of the decree by striking off the defence of the Appellants.
(3.) It was also observed in case Shri Saraswati Spinning Mills, Bhiwani v.Gheru Lal Bal Chand, Abohar,1981 2 AIR(P&H) 299 as under:;