MUNSHI KHAN vs KHAN ZAMAN and another
This civil revision arose from a suit for possession of land, where the trial court dismissed the suit under Order X Rule 4(2) of the Code of Civil Procedure 1908 due to the respondents' failure to appear personally. The respondents successfully appealed this dismissal to the District Judge, who set aside the order and remanded the case for decision on merits. The petitioner challenged this appellate decision in the High Court. The High Court reviewed the record and found that the trial court's order for the personal appearance of the respondents was unjustified and lacked a valid basis, as there was no indication that the respondents' counsel, who was present, failed to answer any court queries. The High Court held that the trial court acted without lawful authority in dismissing the suit for non-appearance under these circumstances. Consequently, the High Court dismissed the civil revision, upholding the appellate court's decision to remand the case for trial on merits, and directed the trial court to expedite the proceedings.
- Can a trial court dismiss a suit under Order X Rule 4(2) of the Code of Civil Procedure 1908 solely for the failure of a party to appear personally when their counsel is present?
- Does a trial court have the authority to order the personal appearance of a party without a specific, valid reason?
- Is permission to lead secondary evidence necessary for a document that is itself a notice?
- Order X Rule 4(2), Code of Civil Procedure 1908
' The respondent filed a suit for possession of suit land that had been purchased by the petitioner vide Mutation No,183 attested on 15-9-1994. The suit was resisted. Issues were framed on 20-3-1995 and the case was adjourned for evidence of the respondents. On 23-5-1995 an application was, filed by the respondents seeking permission to lead secondary evidence vis-a-vis notice of Talb- e-Ishhad. This application was replied to on 7-6-1995. Somehow or the other the learned trial Court proceeded to pass an order for the personal appearance of the respondents. On 9-7-1995 the suit was dismissed under Order X rule 4(2), C.P.C. As the respondents had failed to appear. Feeling aggrieved the respondents filed an appeal which has been allowed by the learned District Judge, Khushab vide order dated 19-6-1996 and the case has been remitted back for decision on merits.
2. Learned counsel for the petitioner contends that the learned District Judge has acted without material irregularity in the exercise of his jurisdiction while reversing the said order of the learned trial Court.
3. I have gone through the copies of the records appended with this civil revision. Now, I find that the learned trail Court has observed that the respondents are not interested in pursuing the case. I find that the sale was effected by means of mutation dated 15-9-1994. The suit was filed on 15-1- 1995. The written statement was filed on 20-3-1995. On the same date issues were framed. The case was adjourned to 30-5-1995 for recording evidence of the respondents. The application for leave to produce the secondary evidence was filed pn 23-5-1995. The reply was filed on 7-6-1995.
The case was adjourned to 27-6-1995 for arguments and at the same time the learned trial Court ordered appearance of the respondent. Now admittedly learned counsel for the respondents was present on the said date and there is nothing on record to suggest that any query was made from the said learned counsel and he had failed to answer the same. The said proceedings hardly reflect any lack of interest on the part of the respondents. To my mind the learned District Judge had very correctly observed that the learned trial Court had acted without lawful authority in ordering the personal appearance of the respondents without any rhyme or reasons and then to punish them for non-appearance.
4. I may further note here that the document in question is itself a notice and permission to lead the secondary evidence is hardly necessary. This civil revision is without any force and is accordingly dismissed leaving the parties to bear their own costs.
5. A copy of this order be immediately remitted to the learned trial Court directing it to commence proceedings in the suit immediately and to decide the same before the year 2002 is out. #EndJudgment
Cited by 2 cases
- Mushtaq Ahmed, etc vs Muhammad Din, etc 2015 KLR Civil Cases 375
- G.R. Syed vs Muhammad Afzaal Regular First Appeal No. 269 of 2006, d_ff6311fb 2007 C.L.R. 800