- (1.) THIS is an appeal by Chetanram against the order of the District Judge of Bikaner under O. X, r. 4 C. P. C. by which he dismissed the suit brought by the appellant.
(2.) IT is not necessary to set out the case of the plaintiff appellant in detail for purposes of this appeal. IT it enough to say that the plaintiff appellant brought a suit for the recovery of one Lakh of rupees against the defendants respondents in the court of the District Judge, Bikaner, in 1951. IT took a long time to serve the defendants. Even after the defendants were served, they did not file their written statement. They had made an application that certain arbitration proceedings were pending in and the Court in this very matter and therefore this suit should be stayed under sec. 10 C. P. C. They also prayed that they might not be required to file the written statement till their application was decided. The matter came up for hearing on the 6th of April, 1963. On that day, counsel for the defendants stated that he was not well, and therefore not prepared to argue the application for stay of proceedings, and prayed for adjournment. The hearing was then adjourned to the 20th of April, 1953. The court also passed an order that the application for stay of proceedings would be decided on the 20th of April, 1953, and that if the stay was rejected, the defendants should be prepared to file written statements the same day. The defendants were also ordered to be present for their statements apparently under O. X, r. 1 C. P. C. The court further ordered that the plaintiff should also be present for his statement, again apparently under O. X. r. 1. Finally, the order-sheet of the day says that if any party was absent, action under O. X, r. 4 would be taken. When the case came up on the 20th of April, 1953, one of the defendants Mangharam was present. The plaintiff was however absent. The court first decided the application for stay, and dismissed by a curious order for the plaintiff's counsel stated that he did not oppose the application for stay, but the court still dismissed it because the defendants' counsel, who had filed the application for stay, admitted that sec. 10 did not strictly apply. Further, thought it was conceded that the court had power to grant stay under sec. 151 as substantially the dame point was in issue in another proceeding (under the Arbitration Act in Delhi, the court did not think it fit to use its inherent powers. Having dismissed the application for stay, the court said that the plaintiff Chetanram was absent in spite of information having been given to him by his counsel. He, therefore, dismissed the suit under O. X, r. 4 (2 ). The present appeal is against this order of dismissal. The appellant's contention is twofold - (1) that he did not get information that he was to be present on the 20th of April, (2) and that (in any case, O. X, r. 4 had no application in the circumstances of this case. So far as the first point is concerned it is enough to say that we are not impressed by the plaintiff's case that he did not have information in time to be present on the 20th of April, 1953, in the court of Bikaner. We need not given our reasons in detail in this connection as we have come to the conclusion that the second contention on behalf of the appellant must prevail, namely that this was not a case to which OX, r. 4 properly applied. O. X, r. 4 runs as follows - " (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, refuses 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 answer if interrogated in person, the 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. It is clear from a perusal of Order X, r. 1 that it is not essential that the party must be present in order to answer question under that provision. Rule 1 lays down that the court can ascertain either from the party or his pleader such facts as are not expressly or by necessary implication admitted or denied by the party against whom they are made. It is obvious that examination under O. X, r. 1 generally takes place after the written statement has been submitted, though it may also take place where the defendant has appeared, but does not propose to file a written statement. Where, however, the defendant is proposing to file a written statement, as in this case, examination under O. X, r. 1 should take place after the written statement has been filed. All that the court could therefore order on the 6th of April, 1953, was that some one should be present on behalf of the parties to answer questions under O. X, r. 1 after the written statement had come. It was too early to say on the 6th of April, 1953, that powers under O. X, r. 4 would be used if any party did not appears on the 20th of April which was the next date fixed. Rule 4 is also, in our opinion, perfectly clear, and comes into play when the pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit. There is nothing in the order-sheet of the 6th April, 1933, to show that the pleader appearing for the plaintiff or the Perokar of the plaintiff, if any, appearing with the pleader, had refused to answer any material question, or was unable to do so. As a matter of fact, as the order-sheet of the 6th April stands no question whatever was put on that day to the pleader of the plaintiff and it was, in our opinion, entirely unnecessary for the court to have threatened action under O X, r. 4 in those circumstances. Let us now turn to the order-sheet of the 20th of April when the suit was dismissed under O X, r. 4 (2 ). The order-sheet says that no just excuse had been disclosed for the absence of the plaintiff. Assuming that to be so, there was no case for the application of O X, r. 4 (2) on that day for two reasons. In the first place, no written statement had been filed on the 20th of April, nor did the defendants say that they did not propose to file a written statement. Under these circumstances no question arose of using any power under O. X, till the written statement was filed, or the defendants stated that they would not file a written statement, but would contest the suit without filing one. In the second place, before the court could take action under O. X; r. 4, it had to put whatever material questions it wanted to put to the pleader for the plaintiff, and if the pleader was unable to answer them, it could fix a date for the appearance of the plaintiff. We have already pointed out that no question were put on the 6th of April, to the pleader which he was unable to answer, and therefore the order insisting on the presence of the plaintiff on the 20th of April, was in itself incorrect. Further, even on the 20th of April, no questions were put to the plaintiff's pleader; nor is there anything in the order-sheet to show that the plaintiff's pleader was unable to answer any material question that the court wanted to put to him It is true that when the court wrote out the judgment on that very day, it has said that on the 6th of April, it was ordered that the plaintiff should also appear in person as his counsel was not prepared to answer all material questions pertaining to the suit. The court probably said so because it seems to have looked at O. X, r. 4 when writing out the judgment, and found that unless it said so could not dismiss the suit under O. X, r. 4 (2 ). But, as we have already mentioned, there is nothing in the order-sheet of the 6th of April, 1953 to suggest that the court put any question, to counsel on that day which the counsel for the plaintiff was unable to answer. O. X, r. 4 is a penal provision, and before the courts can apply it, its terms have to be strictly complied with. We are satisfied that in this case there was no such compliance with the terms of O. X, r. 4 (2 ). As the pleader for the plaintiff was never asked to answer any question, the penalty provided in O. X. r. 4 (2) could not be imposed on the plaintiff, even though he was absent on the 20th April, 1953. In this connection, we may refer to Parmarath Gir vs. Krishna Dayal Gir (1 ). It was held there that the power of the court under O. X, r. 4 was not an unlimited one. It was only where the party's pleader or recognized agent refused or was unable to answer to material questions that the court could direct the personal attendance of the party himself. In the absence of such refusal or inability no case existed for the exercise by the Court of its power under O. 10, r. 4, and if the Court assumed that it had power to direct without assigning any reason, the personal attendance of the parties, the order was irregular. We agree, if we may say so with respect, with the view taken in this case. As the court in this case never put any question to the pleader or the agent of the plaintiff, which he refused, or was unable, to answer, there was no jurisdiction for the court to insist on the presence of the plaintiff, and to dismiss the suit under O. X, r. 4 (2) because he was absent without lawful excuse. We therefore, allow the appeal, set aside the order of the court below, and send the case back for retrial according to law. . ;