1991 PLP 2530 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑This appeal through leave of the Court is directed against the acceptance by the High Court of first appeal against an order filed by the respondent/defendants' side before it. Leave to appeal was granted to the plaintiffs' side in the following circumstances: During the trial of the suit the appellants as plaintiffs were required to appear personally "so as to answer certain questions". The order in this behalf was purported to have been passed under Order X, Rule 4(2), C.P.C. On their assumed failure to comply with the said order consequential penal action was taken against them and they were non‑suited. It may be mentioned here that the appellants who allegedly were minors at the relevant time and being ladies had suffered similar treatment before a forum of the Revenue hierarchy. At that stage also their case could not be decided on merits. Their case having met the same fate before the Civil Court, they riled an appeal before the District Court which was accepted and an order of remand was passed for further proceedings. The respondents' appeal against the said order was allowed by the High Court on the same ground as it prevailed with the learned trial Judge. It has been observed in the impugned judgment 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‑‑‑‑‑‑‑‑‑‑ Leave to appeal was granted to examine: "whether, the question of exercise of discretion allowed by the second part to 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:" Order X, Rule 4, C.P.C: reads as follows:‑‑ "Order X. Examination of Parties by the Court: "

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 future day 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." It is obvious from the language used in sub‑rule (2) of Rule 4 that even when after due inquiry the Court comes to the conclusion that there was no lawful excuse for the party in default, it is discretionary with the Court either to pronounce the judgment against that party or make such order in relation to the suit as it thinks fit. In this case admittedly the parties concerned are females and even if the question of minority of one of them at the relevant stage is not clear, the other was admittedly a minor, therefore, it was not at all a fit case for exercise of discretion against both the female plaintiffs. See Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). There is another aspect of the matter. Sub‑rule (2) of Rule 4 is admittedly a penal provision and has to be construed accordingly. Therefore, (i) the non‑compliance; as well as (ii) the lawfulness of the order passed under sub -rule (1), has to be strictly established. Learned counsel appearing for the respondents in this case to be fair to the female plaintiffs; candidly admitted that it was not very clear: whether, the counsel of the plaintiffs and/or the person who represented them for instructing and accompanying the lawyer had in fact refused or had shown their inability "to answer any material question relating to the suit". All these and other conditions particularly those requirements which have been underlined, needed to be satisfied before taking penal action under sub‑rule (2) of Rule 4, C.P.C. As it has not been established, beyond reasonable doubt, that all the necessary conditions contained in sub‑rule (1) of Rule 4 stood satisfied in this case, therefore, for this additional reason also order passed by the trial Court and restored by the High Court cannot be sustained. This appeal is allowed. The case is remanded to the trial Court for trial of the suit on merits in accordance with the law. There shall be no order as to costs. M.BA./G‑343/S Case remanded.