Full Judgment
Sharma, J.
1. This is an application by the defendant to revise the order of the Munsif at Jhunjhun for striking out their defence. The facts are that sometime before the 1st May, 1951 the defendant Shubh Karan, was askad to copy out the Hundi which is the basis of the suit. The defendant Subh Karan was summoned on the 1st May, 1951 for making out another copy of the document as there was some difference about the manner in which the copy was made. On the 1st May, 1951 Subh Karan was present with his counsel but there was some difference between the parties as to the manner in which the copy was to be made. The Court decided the case on the 3rd May, 1951 without making any order that the defendant Subhakaran should be present on the 3rd May, 1951. On the 3rd May, 1951 Subh Karan was not present and his counsel was not prepared to take the responsibility of producing him on the next date. The Court therefore, made an order to the plaintiff to file process fee within three days to summon Shubh Karan. Subh Karan was summoned as a witness for the plaintiff for the 24th May, 1951. On that date Subh Karan did not appear in Court and the learned Munsif made an order striking out the defence.
Against this order the defendant hap come in revision to this Court. It has been argued by the learned counsel for the defendant that there was no power in the lower Court to strike out the defence when Shubh Karan did not appear on the summons of the plaintiff as a witness. The order of the lower Court was therefore, without jurisdiction or at least it committed illegality or material irregularity in the exercise of its jurisdiction. It was also argued that even if the lower Court had a mind to strike out the defence as a consequence of non-appearance of Subh Karan on the 24th May, 1951 he ought not to have made an order without giving Subh Karan an opportunity to show cause.
2. On behalf of the opposite party it has been argued by Mr. Dutta that the Order of the lower Court was made under the inherent powers given by Section 151 of the Code of Civil Procedure. Rulings reported in 'SHEO PRATAB SINGH v. GHIRRAO SINGH', AIR 1928 Oudh 262; 'VENKATACHARYULU v. MANCHULA YESOB', AIR 1932 Mad 263 and 'EAST INDIAN RLY. CO. v. JIT MAL KALLO MAL', AIR 1925 All 280, have been relied upon. The learned counsel was not able to show any specific provision in Civil Procedure Code apart from Section 151 to justify the action of the lower Court. Even the rulings which have been cited do not apply to the facts of the present case. In AIR 1928 Oudh 262, the defendant was ordered to appear before the trial Court and the Court made attempts from time to time to persuade the defendant to attend the Court, but he persistently failed to comply with the order and under these circumstances, the Court exercising its power under Section 151 struck out the defence.
In AIR 1932 Mad 263, the defendant was ordered to furnish security and the Court ordered him to pay the Batta for the issue of process to the Court amin who was to look into the adequacy of the bond. The defendant did not deposit the amount in the Court although he was warned that on failure to do so his defence would be struck out. The defendant failing to make the deposit the defence was struck out. In AIR 1925 All 2SO, payment of costs was made a condition precedent of adjournment granted to the defendant taut the defendant could not deposit the costs' and the defence was consequently struck out and the case proceeded ex parte.
It would appear that in all these cases as the defendant was ordered to do a certain thing which he failed to do, the Courts might have been justified in these cases in striking out the defence under the inherent powers given by Section 151. In the present case, Such Karan, was not ordered to appear in his capacity as a defendant but was summoned as a witness for the plaintiff. If he did not appear the Court could nave taken action which could be taken against a witness. The Court was however not authorised to strike put the defence under its inherent powers. Even if the Court thought that it had such powers it was its duty at least to ask Subh Karan to show cause why his defence should not be struck out as was done in Madras case referred to by the learned counsel for the applicant. In my opinion even if it may not be said that the Court acted without jurisdiction the Court at least committed a material irregularity in the exercise of its jurisdiction.
3. The application is allowed. The order ofthe lower court striking out the defence is setaside. The costs of this revision shall abide theresult of the suit.