Civil Revision No. 1800 of 2009. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M.No. 7913-CII of 2009 and Civil Revision No. 1800 of 2009.(O&M) DECIDED ON : 31.8.2009. Sarwan Singh Petitioner. VERSUS Onkar Singh and others. Respondents CORAM : Hon'ble Mr. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Vijay Lath, Advocate, and Mr. Naveen Sharma, Advocate, for petitioner. Mr. S.K.Patiyal, Advocate, for respondent sNo.1 and 2. AJAY KUMAR MITTAL,J. C.M.No. 7913-CII of 2009 Allowed as prayed for. Civil Revision No. 1800 of 2009 In this revision, petition filed under Article 227 of the Constitution of India, the petitioner-defendant No.2 has prayed for setting aside the order dated 12.2.2009 (Annexure P-1) passed by the learned Civil Judge (Senior Division), Jalandhar whereby his defence was struck off on the ground that he had failed to make the statement under Order 10 Rule 1 of the Code of Civil Procedure (for short “the Code”). Civil Revision No. 1800 of 2009. 2 The facts in brief, necessary for the disposal of the present revision petition are that the plaintiffs- respondents No. 1 and 2 filed a suit against petitioner-defendant No.2 and proforma respondents No. 3 to 6 seeking declaration that they were the owners in possession of the land measuring 1 Kanal-2 Marlas out of the total land measuring 51 Kanals-3 Marlas, as per jamabandi for the year 2002-03 of village Nagra, H.B.No. 158, Tehsil and District Jalandhar, fully detailed in the head note of the plaint. The plaintiffs had also prayed for consequential relief of permanent injunction restraining defendants No. 1 to 3 from interfering in their peaceful possession of the suit property and restraining defendant No.1 from alienating, mortgaging, exchanging, leasing, creating any charge disposing of the same in any manner or in the alternative they had prayed for possession of the suit property as owner, on the basis of registered sale deed dated 28.8.1995. The trial Court took steps under Order 10 Rule 1 of the Code for recording the statements of the parties before framing of issues. Defendant No.2/petitioner, however, did not make himself available for making the statement before the trial Court for the reasons that he was out of country and as such the trial Court vide order dated 12.9.2008 initiated action under Order 10 Rule 4 of the Code against him and struck off the defence of defendant No.2. I have heard learned counsel for the parties and have perused the file. Civil Revision No. 1800 of 2009. 3 Learned counsel for the petitioner submitted that petitioner-defendant No.2 remained absent on the date when the case was fixed for recording of his statement as he was out of country and there was no refusal at all on his part to make the statement. Learned counsel for defendant No.2- petitioner further submitted that counsel for petitioner- defendant No.2 never expressed his unwillingness or refusal to answer question which the trial Court wanted to elicit and in such like circumstances, defence of the petitioner could not have been struck-off under the provisions of Order 10 Rule 4(2) of the Code. Reliance in support of this contention has been placed on a judgment of this Court in M/S. Ron Son Export House Pvt. Ltd and another Vs. The New Bank of India Ltd. AIR 1989 Punjab and Haryana 287. On the other hand, learned counsel for respondents No. 1 and 2 supported the order passed by the trial Court and submitted that since petitioner- defendant No.2 failed to appear before the trial Court to make a statement, the trial Court was justified in striking off the defence of the petitioner. It would be advantageous to reproduce Order 10 of the Code which reads thus:- “EXAMINATION OF PARTIES BY THE COURT 1.Ascertainment whether allegations in pleadings are admitted or denied.- At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint Civil Revision No. 1800 of 2009. 4 or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admission and denials. 2.Oral examination of party, or companion of party.- (1) At the first hearing of the suit, the Court- (a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in court, as it deems fit; and (b) may orally examine any person, able to answer any material questing relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. (2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied. (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. 3.Substance of examination to be written.- The substance of the examination shall be reduced to writing by the Judge, and shall form part of the Civil Revision No. 1800 of 2009. 5 record. 4.Consequence of refusal or inability of pleader to answer.- (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 to answer if interrogated in person, the Court may postpone the hearing of the suit to a day not later than seven days from the date of first hearing 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.” Order 10 of the Code is an enabling provision and Rule 1 confers on the Court power to examine the parties or their pleader on the first hearing of the suit in order to ascertain the real issues in controversy and also to get admissions or denials on facts and record the same in order to shorten the trial by determining irrelevant issues. The purpose behind the aforesaid provision is to ascertain real points in dispute between the parties by clearing the Civil Revision No. 1800 of 2009. 6 pleadings and removing any ambiguity therein in order to arrive at the exact point of difference between the parties. Rule 2 empowers the Court either at the first hearing or any subsequent hearing to examine orally any party appearing in person or present in the Court or any person who is conversant with the material facts relating to the suit. However, Rule 4 applies where 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 the opinion that the party whom he represents ought to answer if interrogated in person, the Court may postpone the hearing of the suit to a day not later than seven days from the date of first hearing and direct that such party shall appear in person on such day. If such party fails without any lawful excuse to appear in person on the day so appointed, the Court may pronounce the judgment against him, or make such order in relation to the suit as it thinks fit. On plain reading of the aforesaid provisions, the only conclusion that can be drawn is that the Court is empowered to examine any party on first date of hearing or on any subsequent date of hearing who appears in person or is present in Court or any person who is conversant with the facts of the case. However, where a party is represented by a pleader/counsel, opportunity is required to be afforded to such pleader/counsel to answer the questions and in case, the said Civil Revision No. 1800 of 2009. 7 pleader/counsel is unable to answer the question, that the Court could direct the party to appear in person and in the event of his/her failure to appear, resort can be made to sub rule (2) of Rule 4 of Order 10 of the Code and defence struck off. This Court in an analogous situation in M/S. Ron Son Export House Pvt. Ltd case (supra) had observed as under:- “ 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 question 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 a formulation of the question 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 admission so as to narrow down the issues raised in the pleadings but the rule being a penal Civil Revision No. 1800 of 2009. 8 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 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 Saraswati Spinning Mills, Bhiwani v. M/s. Gheru Lal Bal Chand Abokar, AIR 1981 Punj and Har 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 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.” The Karnatka High Court in M/s Karnatka Exports Ltd. Versus Mysore Iron and Steel Ltd., Civil Revision No. 1800 of 2009. 9 Bhadravathi , (AIR 1975, Karnatka 128) and Rajasthan High Court in Vishnu Kumar Versus State Bank of Bikaner and Jaipur and Others , (AIR 1976 Rajasthan 195) have also expressed similar view in the aforesaid decision. In view of the above, the striking off defence of the defendant/petitioner in the present case is,thus, legally unsustainable. The present revision petition is accordingly allowed and the impugned order vide which the defence of the petitioner was struck off, is set aside. Petitioner is granted an opportunity to put up his defence through his pleader in view of the provisions of Order 10 Rule 4 of the Code in the trial Court, which shall proceed in accordance with law. 31.8.2009. ( AJAY KUMAR MITTAL) Anoop JUDGE