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Case Number

C.M 1102/72 in R.S.A 155-D of 1965

Attorney(S)

— Mr. A.L Joshi, Advocate.
— Mr. K.C Mohindra, Advocate.

Judges

Mr. Justice Dalip K. Kapur

Acts

Rule 8, Chapter 3-A, Volume 5 of the High Court Rules
Rules 12, 14, 15, and 17 of Order 41 of the Code.
Order 41 Rule 12 of the Code,
Order 41 Rules 12 and 14
Order 41 Rule 17 (2)
Order 41 Rule 21,
Order 41 Rule 11
Order 41 Rule 12,
Order 41 Rule 20

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Smart Summary

Court Opinion Summary — Dalip K. Kapur, J. (Oral)

Factual and Procedural Background

This is an application (C.M. 1102/72) to set aside an ex parte decision previously made by the judge in R.S.A. 155-D/65. The appeal was heard on 11 October 1971 when the respondent was unrepresented. The record shows the defendant had not been served despite several efforts by postal authorities. The respondent asserts he only learned of the ex parte decision on 29 July 1972, when the successful appellants attempted to execute the decree. The successful appellants replied that the respondents were aware of the October 1971 proceedings; the judge found that reply too vague and accepted the respondent's affidavit that he first heard of the decision on 29 July 1972, rendering the application timely.

Legal Issues Presented

Whether the ex parte decision should be set aside under Order 41 Rule 21 on the ground that the respondent, being unrepresented, was not given proper actual-date notice of hearing.
Whether sending a registered enclosed letter (as occurred) constitutes sufficient compliance with the requirement for sending a registered postcard (A.D.) under the High Court Rules (Rule 8, Chapter 3-A, Volume 5) and thereby permits the presumption of service.
Whether non-service of the actual date notice (or a registered postcard) amounts to "sufficient cause" under Order 41 (rules cited, including Rules 12, 14, 15, 17, 20 and 21) to set aside an ex parte hearing.
Whether the setting-aside of an ex parte judgment should be made conditional on terms (for example, deposit towards decretal amount) or unconditional in the circumstances of this case.

Arguments of the Parties

Respondent's Arguments

The respondent contends he only became aware of the ex parte decision on 29 July 1972 when execution was sought, and thus his application to set aside is within time.
He argues that because he was unrepresented, the court was required to send an actual-date notice in the form of a registered postcard (A.D.) under the High Court Rules; the actual date notice sent was returned marked that the postman could not meet the addressee, so it was never served.
Counsel for the respondent emphasized the difference between a registered postcard and an enclosed registered letter: a postcard could have been seen by household members or the postman could have orally informed relatives, preserving the objective of communicating the date even if the addressee personally did not receive it; an enclosed letter defeats that object.

Successful Appellants' Arguments

The appellants contended that the registered letter that was sent satisfied the requirement under Rule 8, Chapter 3-A (High Court Rules and Orders), which states that posting such a postcard shall be deemed sufficient intimation of the date fixed in the case.
They argued that the returned registered letter (marking the addressee as "not available") should be treated as sufficient intimation and thus the presumption of service could be raised.
The appellants further submitted that the conditions of Order 41 Rule 21 were not met because the notice referred to in Rule 21 is the initial notice under Order 41 Rule 12 and that 'sufficient cause' in Rule 21 does not extend to non-service of a later actual-date notice (such as a registered postcard).
They also sought that, if the ex parte decision were set aside, it should be on terms (such as a deposit), though the precise terms asserted were not detailed in the judgment beyond the request for terms.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded through a stepwise legal analysis focused on notice requirements for unrepresented parties and the meaning of "sufficient cause" for non-appearance under Order 41 of the Code:

The judge accepted the respondent's affidavit that he first learned of the ex parte decision on 29 July 1972 and found the appellants' reply too vague to rebut that statement; therefore the application was considered to be within time.
The statutory and procedural context: the court examined the interplay of several provisions of Order 41 (Rules 11, 12, 14, 15, 17(2), 20 and 21) and the practice derived from the Lahore High Court regarding notice and cause lists. The court emphasised that an unrepresented respondent can appear only if actually intimated of the hearing date.
On the specific form of notice, the relevant High Court Rule (Rule 8, Chapter 3-A, Volume 5) requires that if a party is unrepresented a registered postcard (A.D.) be sent and states that "The posting of such postcard shall be deemed to be sufficient intimation to the party of the date fixed in the case." The court contrasted the function of a registered postcard with an enclosed registered letter: a postcard may allow household members or the postman to be aware of the date, whereas an enclosed letter can defeat that communicative function.
The court rejected the appellants' contention that the returned registered letter should attract the presumption of service. The judge reasoned that such a presumption might be arguable if the addressee had refused the letter, but not when the letter was returned because the postman repeatedly could not meet the addressee; in that circumstance the letter was not served at all and the presumption cannot be raised.
Addressing the appellants' narrower reading of "sufficient cause" under Rule 21—that it applies only to the initial notice under Rule 12 and not to later actual-date notices—the court examined the chronology. The initial notice had fixed 30 August 1965, but the appeal was actually heard on 11 October 1971 (with an office entry showing the 1965 date), and the matter was only placed before the court on 23 September 1971. Given the long lapse (roughly six years) between the initial notice and the hearing, a party served with the initial notice could not reasonably be expected to monitor the court for such a prolonged period without an actual-date intimation. Therefore the court held that the "sufficient cause" provision must apply where the actual date notice was not served.
Because there was "no material at all" to show the respondent ever knew of the date of hearing, the court concluded the respondent had sufficient cause for not appearing; consequently the ex parte decision had to be set aside and the appeal re-heard.
Regarding terms, the court considered but rejected imposing terms (such as a deposit) before setting aside the ex parte judgment. The judge explained that he could not attribute blame to the respondent and therefore could not, as a condition for setting the matter down for rehearing, require a deposit or other terms.

Holding and Implications

Core Ruling: The ex parte decision is set aside and the appeal is ordered to be reheard.

Direct consequences imposed by the court (as contained in the opinion):

The ex parte decision in R.S.A. 155-D/65 is set aside and the appeal is to be re-heard.
The appeal is specifically ordered to be heard on 1 December 1972.
No terms or conditions (such as deposit towards the decretal amount) are imposed on the respondent as a condition for setting aside the ex parte judgment, because the court could not attribute blame to the respondent.
The re-hearing is ordered without imposing any condition; costs allocation in these proceedings was not treated as a ground for penalising the respondent (the judge recorded he could not attribute blame to the respondent).

Broader implications: The opinion reasons about the proper interpretation and operation of notice requirements under Order 41 and related High Court Rules, emphasising that actual-date intimation for unrepresented parties is a substantive procedural requirement. The opinion does not purport to set a new legal precedent beyond the facts dealt with; it applies the existing rules to find that non-service of an actual-date notice (especially where a postcard was required but an enclosed letter was sent and returned undelivered) can constitute sufficient cause to set aside an ex parte decision.

Order accordingly.

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Risal Singh And Others v. Indraj

Dalip K. Kapur, J. (Oral):— This is an application to set aside the ex parte decision arrived at by me in R.S.A 155-D/65. The respondent was unrepresented at the time of the hearing of the appeal on 11th October, 1971. I noted even in the judgment at that time, that defendant has not been served in spite of many efforts by the postal authorities.

The respondent applied for setting aside the ex parte decision of the appeal and for a rehearing of the same by an application, C.M 1102/72. Although the application has been moved very late, it states that the respondent only heard about the ex parte proceedings on 29th July, 1972 when the successful appellants sought to execute the decree. It is contended by the successful appellants in their reply, that the respondents were aware of the proceedings in October, 1971. No date or time has been mentioned in the reply nor is the manner or method of conveying the decision of this court to the respondent mentioned in the affidavit. I consider the reply to be too vague and accept the respondent's pleading and affidavit that he came to hear of the decision of the appeal on 29th July, 1972. Consequently, the application is within time.

The only ground urged in support of the application under Order 41 Rule 21, is that the respondent was not represented in these proceedings by an Advocate and therefore an actual date notice had to be served on him. In fact, an actual date notice was sent to the respondent but was returned to the court on the ground that the respondent could not be found, or to use the exact language on the registered cover: “Going again and again but not met”. After this report the registered letter was returned to the court with the remark “addressee was not available”. In fact the addressee was not available because the postman did not meet him.

It is urged in reply to the contention of the respondent-applicant by the successful appellants, that the sending of the registered letter is sufficient compliance with Rule 8, Chapter 3-A, Volume 5 of the High Court Rules and Orders. That rule requires that if a party is appearing in a case without being represented by a counsel a registered postcard (A.D) will be sent to him intimating the actual date of hearing. At the end of this rule the following words appear :—

“The posting of such postcard shall be deemed to be sufficient intimation to the party of the date fixed in the case.”

It is urged by learned counsel for the appellants that even though the registered letter addressed to the respondent came back on the ground that he was not available this must be deemed to be sufficient intimation of the date fixed in the case. This argument might have some force if the registered letter had been refused by the respondent. But in fact it has not been served on him at all because the postman could not meet him. So, the presumption of service cannot be raised at all in this case.

One submission made by the respondent applicant's counsel is worthy of note in this respect. It is pointed out that the rule requires that a registered ‘post-card’ should be sent in case a party is not represented by a counsel. He submits that the mention of ‘post-card’ is not accidental in the rule. If a postcard is sent, and it is registered, then even if it is not delivered to the party concerned, and is refused, or is otherwise not served because he was not available as in this case, a person related to the person concerned or living in his house-hold may be in a position to note the contents of the registered postcard and it will equally be possible for the postman to tell the relatives or other persons in the household of the party concerned, that his case has been fixed for a particular date. The very object of the postcard is stated to have been lost in the present case, because an enclosed registered envelope was sent to the respondent, the contents of which could possibly be examined by either the postman or any other person he might have met, there is a great deal of substance in this contention. It is used to be the practice of the court to send a registered ‘post-card’ and it is a bit surprising that an enclosed letter was sent in this particular case with the unfortunate result that the respondent had not idea of the date of hearing.

It is, however, contended by the learned counsel for the appellants that the conditions of Order 41 Rule 21 are not satisfied in this case. It is submitted that the notice referred to in this rule is the notice specified in Order 41 Rule 12 of the Code, and the ‘sufficient cause’ which is mentioned in this rule does not include the non-service of the registered postcard. I do not think this submission is correct. I shall shortly state my reasons.

In Order 41 Rule 17 (2) it is provided that if the appellant appears and the respondent does not appear the appeal shall be heard ex parte. Now a respondent can only appear on a given date if he has some intimation that that particular date is the date of hearing. The practice and procedure of this Court, as adopted from the Lahore High Court, is that there is a running list. As far as cases in which counsel are engaged are concerned, the learned counsel are themselves able to represent the party concerned on the date fixed because they have the running cause lists and weekly and daily cause lists of the court available which intimate the date of hearing to them. As far as parties who are not represented by the counsel are concerned, the date has to be intimated to such party by some means, and if it is not intimated the party concerned cannot possibly appear in court.

There are two ways in which the date of hearing can be fixed. The date can be fixed at the initial or preliminary hearing of the appeal, when an order under Order 41 Rule 11 is passed admitting the appeal. In such a case the appellate court can fix a date of hearing under Order 41 Rule 12, and if this is done this date has to be intimated to the respondent, who is thus required to appear on that date and if he does not appear then the proceedings may be taken ex parte against him. This is also the procedure followed in civil suits. However the practice in this Court in appeals has been that the initial date is fixed by the Deputy Registrar or by the court office, as a ‘Farzi’ or tentative, date. If the party has engaged a lawyer there is no further need to intimate the actual date of hearing to the party concerned. If, however, no counsel is engaged, then the actual date of hearing has to be conveyed to the party concerned, otherwise there will be non-compliance with Rules 12, 14, 15, and 17 of Order 41 of the Code. This means that the non-service of the actual date notice really amounts to non-service of a notice intimating the date of hearing of the appeal to the respondent. It is not sufficient, in my view, for the respondent to be informed that an appeal has been filed against him. He has also to be informed of the date on which the appeal has to be heard and also informed that if he is not present on that day he may be penalised by an ex parte decision being passed against him. If the precise date is not intimated to him he cannot be pensalised. If the actual date notice had been sent in the prescribed form by a postcard duly addressed to the respondent, it would have been an intimation of the date of actual hearing even if the post had not been received by the respondent and had only been received or seen by the members of his household or some other person connected with him. In the present case, there is no material at all to show that the respondent ever knew of the date of hearing. It cannot therefore be denied that the respondent had at least sufficient cause for not appearing on the date fixed for the hearing. It is contended by the counsel for the appellant that the words used in Order 41 Rule 20 read as follows :—

“If he satisfies the Court that notice was not served or that he was prevented by sufficient cause to appear when the appeal was fixed for hearing.”

According to the counsel for the appellant these words referred only to the initial notice served under Order 41 Rules 12 and 14 and not any later notice. Of course, if the actual date had been fixed in the initial notice and the case had been fixed on that date and the matter adjourned, this argument would be irrefutable. Unfortunately, the initial notice in this case fixed 30th August, 1965, as the date of hearing; it was served on the respondent who did not engage a counsel. The case was not at all fixed before court on that date but was placed before the Court on 23rd September, 1971. There is an office order on the record which runs as follows: —

“To be heard on 30th August, 1965 by a single bench and issue notice . . .”

For some reasons the case was never set down for hearing on 30th August, 1965 but was fixed on 23rd September, 1971. Obviously a person who has been served with a notice to appear on 30th August, 1965 cannot possibly appear on 11th October, 1971, when the appeal was actually heard unless he is informed of this fact. He cannot be expected to enquire from the court periodically for over a period of six years as to when his case has to be heard. It, therefore, seems to me that this rule which deals with ‘sufficient cause’ for non-appearance, certainly applies to this case and therefore the ex parte decision in the appeal has to be set aside and the appeal has to be set down for re-hearing.

It is submitted by the learned counsel for the appellants that the setting aside of the ex parte judgment should be on terms. I do not think that terms can be imposed in the circumstances of this case. As the answering respondent had been successful in the lower appellate court I cannot order that the respondent should deposit some amount towards the decretal amount as a condition for setting aside the ex parte judgment. As far as costs in these proceedings are concerned; as I cannot attribute any blame on the respondent, I order the re-hearing of the appeal without imposing any condition. As the appeal is an old one, I order it to be heard on 1st December, 1972.

Order accordingly

Risal Singh And Others v. Indraj

Court Opinion Summary — Dalip K. Kapur, J. (Oral)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent's Arguments

Successful Appellants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Risal Singh And Others v. Indraj

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