The court has the power to require the personal attendance of a party to a suit in proper cases, but the court must first find that the Pleader representing the party is unable to answer a material question relating to the suit. The court cannot dismiss a suit in anticipation of the party's failure to appear in person.

D. C. CHAKRAVORTI, J.

( 1 ) IN this Rule the propriety of Order No. 36 dated March 31, 1979 made by the learned Judge, 4th Bench, City Civil Court, Calcutta, is challenged.

( 2 ) THE relevant facts stated succinctly are as follows : the opposite parties who were the landlords brought a suit for eviction against the petitioner on the ground that the petitioner defaulted in payment of rent since December, 1974. The suit was decreed ex parte on April 21, 1977. Thereafter the present petitioner made an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) for having the decree set aside on the ground of non-service of summons and for restoration of the said suit. An application for stay of the Title Execution Case No. 64 of 1977 arising out of the said ex parte decree was also made on behalf of the petitioner and the Court below by its order No. 19 dated February 25, 1978 directed the petitioner to deposit Rs. 709/-by February 27, 1978. The petitioner duly deposited Rs. 709/- in terms of the said order No. 19 dated February 25, 1978 and an order staying execution of the said decree was made and April 1, 1978 was fixed for the hearing of the Misc. Case arising out of the said application under Order IX Rule 13 of the Code. On that day the petitioner was personally present as by the said order No. 19 she was required to be present personally but as the Presiding Officer was transferred and the Judge-in-Charge had no time, the hearing was adjourned to June 3, 1978. Thereafter the hearing was adjourned from time to time and it was ultimately fixed on March 31, 1979. The impugned order is the order passed that day whereby the learned Judge on the prayer of the petitioner adjourned the peremptory hearing of the case to May 5, 1979 and further ordered that on the failure on the part of the petitioner to appear in person on that day the said Misc. Case would stand dismissed for non-compliance with the Court's Order No. 19 dated 25-2-1978.

( 3 ) MR. M. P. Banerjee, learned Advocate appearing in support of the Rule initially argues that the Court has no power to require the personal attendance of any party to a suit. When it was pointed out that in proper cases the Court has been empowered by different provisions of the Code, such as, Order V Rule 3 and Order X Rule 4 to require a party to a suit to be present in person, Mr. Banerjee conceded that it was so.

( 4 ) MR. Banerjee further argued that the impugned order was bad inasmuch as in terms of that order the Misc. Case was to stand dismissed for non-compliance with the Court's Order No. 19 dated 25-2-1978 in the event of the failure on the part of the petitioner to appear in person. As the petitioner did personally appear on April 1, 1978 which was the date fixed by the said order No. 19 and on which date she was required to be present in person by that very order, namely, Order No. 19, the said Order was duly complied with and there was nothing more to be done by the petitioner in terms of that order. Strictly speaking, therefore, the failure on the part of the petitioner to appear in person on May 5, 1979 would not be tantamount to non-compliance with Court's order No. 19 dated 25-2-1978. In that view of the matter that part of the impugned order dated March 31, 1979 whereby it was ordered that on the failure to appear in person on May 5, 1979 the Misc. Case would stand dismissed for non-compliance of the Court's order No. 19 dated 25-2-1978 was bad.

( 5 ) AS already pointed out the Court in proper cases has powers to require personal attendance of a party to a suit even though he or she may be represented by a lawyer and there may be a person competent on his or her behalf to instruct the lawyer properly. In particular, the provisions of Order V Rule 3 of the Code and Order X Rule 4 of the Code authorise the Court in the circumstances stated therein to require a party to a suit to appear in person. By the proviso to Order III Rule

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