1978 Supreme(MP) 278

IN THE HIGH COURT OF MADHYA PRADESH
S. S. SHARMA, C. P. SINGH, JJ.
Raja Lalit Kumarsingh - Appellant
Versus
Gouri Shankar Tripathi - Respondent
F. A. No. 61 of 1973 (G)
Decided on : 15-11-1978

Headnote:Civil Procedure Code, 1908 - O. 9, R. 12 - trial Court ordered plaintiff to appear in person if he wishes to give evidence - on date of appearance plaintiff submitted an application that he was ill - trial Court dismissed the suit in default of appearance of the plaintiff - order bad in law - Order 9, rule 12 CPC not attracted.

       Short Note

       1. A suit was filed on behalf of the appellant - plaintiff, as ex - ruler of the former Raigarh State by the Manager, Court of Wards. This was a suit for accounts against the respondent - defendant who was said to be managing the estate under a general power of attorney prior to the taking over of the estate by the Court of Wards. Issues had been framed in this case.

       2. By order dated 9 - 10 - 72 the Court disposed of an application submitted by the plaintiff's counsel for summoning the plaintiff to give evidence. The order in this behalf was - "I, therefore, order that the plaintiff should appear in person if he wishes to give his own evidence." The case was fixed for 8 - 12 - 72. On 8 - 12 - 72 the plaintiff did not appear and again there was an application for an adjournment. The case was adjourned "for 11 - 12 - 72 only for the examination of the plaintiff subject to cost of Rs. 25 (Rs. Twenty - five only)". It was further directed that "The plaintiff should appear in person on 11 - 12 - 72 if he wishes to give evidence."

       3. When the case was taken up on 11 - 12 - 72 an application was submitted by the Manager, Court of Wards for adjourning the case as the plaintiff was unable to appear in Court due to illness. The learned Additional District Judge referring to the previous absence of the plaintiff rejected the application for adjournment as it was neither supported by an affidavit nor any medical certificate. While so doing he proceeded to dispose of the suit under Order 9, rule 12 of the Code of Civil Procedure, read with Order 9, rule 9 thereof. He accordingly dismissed the suit with costs in default of appearance of the plaintiff. Aggrieved by that the present appeal has been filed.

       4. Held : In the instant case the order of the Court was for appearance of the plaintiff if he wishes to give evidence. This in itself makes it clear that the order was depending upon the question whether the plaintiff wanted to examine himself as a witness or not. The language of the order makes it dear that it was left to the plaintiff to appear if he wanted to give evidence. In our opinion the order as was passed by the Additional District Judge could not be said to be an order directing the plaintiff to appear in person as is contemplated by rule 12 of Order 9 CPC. On failure of the plaintiff to appear in compliance with the type of the order that was passed, the Court could have passed any other order so far as the right to examine himself as a witness was concerned. The plaintiff could not have been visited with the penalty provided in Order 9, rule 12 of the Code of Civil Procedure. The dismissal of the suit on that ground was, therefore, clearly unwarranted and illegal.

       Appeal allowed. Case remanded.