Mst. GHULAM FATIMA and another vs Mst. SABLAN and 7 others
The petitioners sought leave to appeal against the judgment of the High Court, which had accepted the respondents' First Appeal from Order and restored the trial court's order non-suiting the petitioners. The petitioners had failed to appear personally in court as required under Order X, Rule 4(2) of the Code of Civil Procedure, 1908. The Supreme Court observed that the grounds urged, particularly regarding the proper exercise of judicial discretion under the second part of sub-rule (2) of Rule 4 of Order X, Code of Civil Procedure, 1908, and whether such discretion should have been exercised against female plaintiffs under the circumstances of the case, required detailed examination. Consequently, the Supreme Court granted leave to appeal subject to furnishing security.
- Does the failure of a party to appear personally in court under Order X Rule 4(2) of the Code of Civil Procedure 1908 automatically warrant non-suiting without specific examination of discretion?
- How should judicial discretion under the second part of sub-rule (2) of Rule 4 of Order X of the Code of Civil Procedure 1908 be exercised in the case of female litigants?
- Order X Rule 4(2), Code of Civil Procedure 1908
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the plaintiff side in a suit for declaration; against the acceptance by the High Court, of reapondents' F.A.O.
2. ' The petitioners were required under Order X, Rule 4 (2) C.P.C. To appear personally in Court and to answer questions. On their failure to do so they were non-suited. Their appeal was accepted but the respondents side having in their turn succeeded in the High Court, the petitioners have now sought leave to appeal.
3. ' The learned Judge in the High Court after giving reasons for setting aside the appellate order in the operative part of the impugned judgment observed as follows :- "The absence of the next friend of Lal Khatoon and Ghulam Fatima on two dates when they were ordered to appear in person entailed the penalty embodied in Order X, Rule 4(2) of the C.P.C. I, therefore, accept this first appeal against order------- ."
4. The impugned judgment has been challenged on various grounds stated in the petition. The grounds urged in the petition together with the points: whether, the question of exercise of discretion allowed by the second part of sub-rule (2) of Rule 4 of Order X, C.P.C. Did not require the Court to examine it specifically; whether, the discretion should be exercised against the plaintiffs females; in the circumstances of this case, would require examination. Leave to appeal, accordingly, is granted.
5. ' Security Rs,5,000.
6. ' The appeal shall be prepared on the present record with direction to the parties to file all essential documents.