Mohammad Rafiq, J. - (1.) THIS is defendants' first appeal filed under Sec. 96 of the Code of Civil Procedure, 1908 against the judgment & decree dt. 05/01/1991 passed by learned District Judge, Tonk whereby, the suit filed by the plaintiff -respondent -State Bank of India for recovery of loan amount has been decreed in its favour under Order 34 Rules 4 & 5 of Code of Civil Procedure. Facts of the case are that plaintiff filed a suit for recovery of Rs. 1,86,562.87 against the defendant -appellants and defendant -respondents No. 2 & 3 on the premise that the State Bank of India granted loan of Rs. 1,50,000/ - to defendant -respondents No. 2 & 3 executing an agreement on 24/09/1983 in favour of the bank. The Bank further agreed to sanction loan to the extent of Rs. 2,00,000/ - on cash credit facility. A guarantee agreement was also executed by defendant -respondents No. 4 & 5 in favour of defendant -respondent No. 1 -State Bank of India. A second charge on the plot, buildings, machinery etc. was also created in favour of the bank.
(2.) WRITTEN -statement was filed by the defendants before the trial Court denying the averments of the plaint and execution of the documents. Plaintiff filed an application for summoning the defendants No. 2 to 4 in person for recording their statements under Order 10 Rules 1 & 2 CPC, which was allowed by the trial Court. On their putting appearance in person, the trial Court decreed the suit vide its order dt. 05/01/1991. Shri Sagar Mai Mehta, learned Senior Advocate for the defendant -appellants submitted that the trial Court committed serious error of law in allowing the application under Order 10 Rules 1 & 2 CPC by summoning of the defendants in person. Intention of Order 10 Rules 1 & 2 CPC is to enable the Court not only to get obscure points cleared by obtaining the information from either of the parties but also, if possible, to get admissions so as to narrow down the issues in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly before the Court, which can justifiably pass an order striking off the defence. It is clear from the phraseology of the aforesaid rule that before the Court requires the personal appearance of party, it should essentially examine the party's counsel and if it still feels that further elucidation of any point or question is necessary, it may call the party in person. In the present case, the trial Court never examined the counsel for the appellants, who remained present throughout on every date of hearing and the order requiring personal attendance of the appellants was passed without compliance of the aforesaid provision of law. It is contended that the counsel for the applicant filed an application before the trial Court showing his willingness to be examined under Order 10 Rules 1 & 2 CPC as he was required to admit/deny the documents and give statements on the points involved in the case but the trial Court did not pass any order on that application and thus committed gross illegality in passing the judgment & decree impugned in the present appeal.
(3.) SHRI Sagar Mai Mehta, learned Senior Advocate argued that an application was filed under Order 6 Rule 17 CPC by the defendant -appellants seeking amendment of the written statement and the case was fixed for arguments on 24/4/1989 and was adjourned to 26/5/1989. On that date, the trial Court ordered that firstly the statements under Order 10 Rules 1 & 2 CPC will be recorded and kept the application seeking amendment of the written statement pending. Normally, a person desiring a Court to give a judgment as to any legal right or liability has to prove the facts on which right or liability is to be fastened on the other party according to the principle contained in Section 101 of the Indian Evidence Act, 1872. When plaintiff claims that defendant has taken a loan and has executed documents, he is to prove that defendant executed the same unless the defendant would have admitted that he executed the documents. In the present case, the appellants have not admitted the execution of the documents and the plaintiff was not called upon to adduce evidence to prove the documents. Despite this, the learned trial Court decreed the suit without any proof. The judgment and decree has been passed by the trial Court without framing any issue in this regard and recording of the evidence of the parties.;