This civil revision is directed against the judgment and decree, dated the 6th December, 1979, passed by the District Judge, Sheikhupura, whereby he bad partly accepted an appeal preferred by the petitioners, Manzoor & Co. And others, against the judgment and decree, dated 22nd April, 1979, of a Civil Judge of Sheikhupura, by which a suit brought by the respondent, National Bank of Pakistan, against the petitioners for recovery of Rs. 23,040.99 with interest, had been decreed.
2. The suit instituted by the respondent was resisted by the petitioners contending that the amount of Rs. 23,040.99 claimed by the respondent was not due to the respondent. They, however, offered to pay such amount as was actually due from them, by instalments. In view of the position taken by the petitioners, the learned .Civil Judge directed the petitioners to appear before him on 31st March, 1979 for making statements. His order in this behalf reads as follows;-- --------------- a perusal of the written statement reveals that defendants have expressed willingness to pay the debt through instalments. I direct the defendants to be present for statement on 31-3-79. A representative of the Bank shall be present, who should be in a position to make statement in view of the offer of defendants."
On 31st March, 1979, it was stated by learned counsel for the petitioners (defendants) that he could not contract his clients and asked for some more time for compromise which was likely to be reached by the parties. Learned counsel for the respondent did not raise any objection. The learned Civil Judge, , therefore adjourned the case to 22nd April, 1979 directing the petitioners to attend the Court, in person, on the said date. On 22nd April, 1979, the parties' counsel were present but none of the defendants had entered appearance. It was submitted by their counsel that he had conveyed the orders of the Court to the petitioners (defendants) and that they admitted the respondent's claim "but instalments should be fixed for payment". On this, the learned Civil Judge made the following order :- "Learned counsel has, however, failed to give any reason what to speak of a plausible reason for their absence today. I find that I had, by order dated 27-3-79, directed the defendants to be present for state--ment on 31-3-1979 but they did not do so. Anyway, a further opportunity was afforded in the interest of parties and they, as said above, were directed on 31-3-79 to attend this Court today, i.e. 22-4-79. Plaintiff-Bank has sued them for recovery of Rs. 23,040.99 besides interest from 8-4-1975. Apart from the fact that the plaintiff's case is ex facie proved by the documents placed on the file. The admission of defendants in para. 6, merited the suit being decreed. But above all the disregard shown by the defen--dants regarding their presence in Court leads to irresistible conclusion of dismissing the suit under Order X, rule 4(2) of the Code of Civil Procedure. 1, accordingly pass a decree for recovery of the sum of in suit with costs and interest from the date of institution till the date of realization of the total amount."
This order of the trial Court was challenged by the petitioners by means of an appeal which, as indicated above, was partly accepted. Hence the civil revision in hand.
3. Learned counsel for the petitioners contended that while directing the defendants, under Order X, rule 4, of the Code of Civil Procedure to appear in person before him the learned Civil Judge did not formulate material points on which their statements were required to be recorded not did he question their counsel with a view to finding out if he (counsel) was in a position to make, the requisite statement on the said points and, therefore, the order, dated the 27th March, 1979, was violative of the provisions of Order X, rule 4. The argument proceeds that since the aforesaid order was not in accordance with law, judgment could not be pronounced against the petitioners for their non-appearance before the trial Court. They relied on Sadeshwar Narain v. Qadir Bakhsh and others (AIR 1918 Oudh 429) to support their plea.
4. On the other hand, learned counsel for the respondent submitted that the learned Civil Judge wanted to examine the petitioners with reference to their offer to pay the amount due from them, by instalments, and it was immaterial if in his order, dated 27th March 1979, the purpose of their examination was not specified by the learned Civil Judge. In this connec--petition, reliance was placed by him on Manzoor Ahmad Khan v. Muhammad Bashlr (PLD 1978 Lab. 1025) and Sodhi Sadhu Singh & Sons and others v. Dal Chand Tulsi Ram and another (AIR 1933 Lab. 922).
5. In the case of Sadeshwar Narain cited by the learned counsel for the petitioners, it was held by the High Court of Oudh that before an order can be passed against a party directing him to appear in Court under the provisions of Order X, rule 4, it is necessary that the Court should find in the first instance that there are material question relating to the suit which must be answered either by such party or by his pleader and when such party has a pleader it is only when the pleader is unable or refuses to answer these questions of Order X, rule 4, may direct a party to appear in person. In the cited case, it appears that Subordinate Judge did not specify the material questions and also did not call upon the appellant's pleader to answer them. The order of the Subordinate Judge directing the appellant to attend the Court was, therefore, found to be erroneous and was set aside.
6. On the other hand, in the case of Sodhi Sadhu Singh & Sons and others, decided by the Lahore High Court, the defendant failed to appear before the Senior Subordinate Judge in compliance with his following direction under Order X, rule 4 of the Code of Civil Procedure although several opportunities were given to them for the purpose :- "The parties should appear personally on 5th December 1931 for their statements being recorded."
The learned Senior Subordinate Judge, therefore, decreed the suit. In appeal before the High Court it was argued on behalf of the defendants-appellants that in order to justify the action which the Court had taken under Order X, rule 4, was incumbent upon the learned Senior Subordinate Judge to put any question to the pleader of the party or such person as accompanied the pleader and it was only when the pleader for the defendant was unable to answer the question that the procedure contemplated by sub-rule (2) of rule 4 of Order X could be adopted. This argument was, however, repelled by a Division Bench of the High Court with the following observations: - "In appeal it is argued on behalf of the defendants-appellants, that in order to justify the action which the Court has taken under Order X, rule 4, Civil Procedure Code it was incumbent upon the learned Senior Subordinate Judge to put any question to the pleader of the party or such other person as accompanied the pleader (in this case Arjan Singh, General Attorney) and that it was only when the pleader for the defendants was unable to answer the question that the procedure contemplated by Order X, rule 4, sub-rule (2), Civil Procedure Code could be adopted. This argument is perfectly correct so far as it goes, but, having regard to the proceedings detailed above and to the repeated orders of the Court, to which reference has been made, there cannot be any doubt that the pleader for the defendants and Arjan Singh, Mukhtar, were not prepared to make any statement as regards the case set up on behalf of the defendants. As already stated, reference to Order X, rule 4 is contained in the orders bearing the dates 21st January, 1932, 16th February 1.932 and 16th March 1932, and Mr. Shadi Lal who represented the defendants in the lower Court knew exactly what the implications of these references were. The inference is obvious that the pleader did not undertake and in all probability was not in a position to undertake, to answer the questions which the Court might have put as regards the plea of payment vaguely raised in the written statement. In my judgment, having regard to the circumstances of the case the trial Judge had no alternative left except to pronounce judgment against the recalcitrant defendants 1 and 2."
7. In Manzoor Ahmed Khan's case, which was also cited by the learned counsel for the respondents, a learned Single Judge of this Court, Muhammad Afzal Zullah, J. (as his Lordship then was) directed the parties to an appeal, under Order X, rule 4, read with. Section 107 of the Code of Civil Procedure, to appear before his Lordship for making statements with regard to a compromise alleged to have been entered into by them. The appellant failed to appear in the Court. It was observed by his Lordship that the judgment could be pronounced against the defaulting party due to his failure to enter appearance.
8. From the authorities cited at the bar it would therefore, appear that whereas according to the Oudh High Court the failure of the Court to formulate the questions on which the statement of a party is required to be recorded and to enquire from his counsel as to whether he was in a position to make statement on those questions was a material irregularity justifying interference by the superior Courts, the Lahore High Court feels that such a shortcoming on the part of a Court does not preclude the Court from pronouncing judgment against the party at fault. It is also a matter of common knowledge that before striking issues, the Courts of original jurisdiction require the parties to appear in person to record their statements and the order passed in this behalf does not specify the precise points on which they are required to be examined. Also, such orders are made without enquiring from their counsel if they would be able to make the desired) statements . All this is done in order to narrow down the field of controversy between the parties and obtain their firm commitment in regard to the subject-- matter of the suit because the commitments of the parties' counsel on the questions of fact are generally disowned by the parties on the plea that they were made without taking them into confidence. If a strict view of the matter is taken as done by their Lordships of Oudh High Court it would give rise to serious complications in regard to cases in which the Courts had required the parties to enter personal appearance without framing the precise questions on which they were to be examined and without enquiring from their counsel if they were ready to make statements on those questions. Keeping all these factors in view, 1, with respect, express my inability to share the view taken by the Oudh High Court and would like to follow the line adopted by this Court in cases of Sodhi Sadhu Singh & Sons and others and Manzoor Ahmad Khan.
In view of these precedent cases, I am of the view that the failure of the Court to mention the material questions on which the statement of a party is to be recorded and to ask his counsel if he is in a position to make statement thereon amounts to an irregularity and not an illegality . It has been provided in section 99 of the Code of Civil Procedure that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, no: affecting the merits of the case or the jurisdiction of the Court. No prejudice appears to have been caused to the petitioners before me as a result of the irregularity involved in this case. The mere fact that the judgment was pronounced against them would not warrant a conclusion that their case was prejudiced due to the aforesaid lapse on the part o the trial Court. The prejudice as contemplated by section 99 might have been caused to the petitioners if they had appeared before the trial Court and, while making statements at the instance of the trial Court, had suffered in any respect due to the non-formulation of the material points by the trial Court . Since they did not appear before the trial Court, the question of any prejudice having been caused to them in connection with the recording of their statements did not arise at all. Thus, the irregularity committed by the trial Court in the matter of the making of order, dated the 27th March, 1979, requiring the petitioners to appear personally before the said Court stands cured by the provisions of section 99 of the Code of Civil Procedure.
10. For these reasons, the order under revision does not call for any interference. The petition dismissed with costs.