Baldeo Lall v. Musammat Matisara Kuer, Patna High Court, Judgment, Law, casemine.com

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Case Number

Appeal from Appellate Decree no. 671 of 1926, from a decision of Rai Bahadur A.N Mitter, District Judge of Saran, dated the 16th February, 1926, confirming a decision of Babu Anjani Kumar Sahai, Munsif of Siwan, dated the 25th February, 1925

Attorney(S)

Sambhu Saran, for the appellants.
Ram Prasad, for the respondents.

Judges

Adami
Chatterji, JJ.

Acts

Order IX, rule 13, of the present Code of Civil Procedure
section 108 of the old Code of Civil Procedure, 1882,
section 105 of the Code of Civil Procedure,
section 108 or Order IX, rule 13
Order IX, rule 13 of the Code
Order IX, rule 13,

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Smart Summary

Factual and Procedural Background

This litigation arises from a rent suit, an execution sale and subsequent civil suit brought by a widow (the plaintiff) seeking to set aside an ex parte decree and the sale held in execution thereof and to recover possession of land.

Key facts (as stated in the opinion):

One Chuni Lal had three sons: Tilakdhari (defendant no. 1), Lalbehari (defendant no. 2) and Kali Lal (the plaintiff's deceased husband).
Defendants 3 to 5 were the maliks of the pattī in which the disputed land lay. Defendants 6 and 7 were sons of Lala Rambaran Lal (zarpeshgidar of part of defendant no. 3's share).
The maliks and zarpeshgidars (including defendants 6 & 7's father) brought a rent suit against defendants 1 & 2 and obtained an ex parte decree dated 13 March 1916. In execution (execution case No. 11 of 1917) the disputed property was sold and purchased in the name of the father of defendants 6 & 7.
The plaintiff alleged that the land fell to her husband's share on partition and that she and her husband had been in possession (paying rent to the maliks). She alleged the rent decree and the sale were fraudulent and collusive (brought about at the instance of defendants 1 & 2), that the purchase was made in the "farzi" name of the father of defendants 6 & 7, and that she was dispossessed in 1922 following a revisional survey entry. She sought declarations that the decree and sale were collusive and not binding, rectification of the survey entry, and recovery of possession.
Defendant no. 3 (a malik) contested the suit, denied the plaintiff's marital status and relationship to the land, and asserted the decree and sale were valid.
Defendants 1 & 2 entered into a compromise admitting the plaintiff's claim; the plaintiff then successfully asked the Court to expunge defendant no. 3's name from the suit without notice to him; a decree on compromise was passed against defendants 1 & 2 and an ex parte decree remained as to defendants 4 to 7.
Defendants 4 & 5 applied under Order IX, rule 13 (CPC) to set aside the ex parte decree. The Court on 15 Nov 1924 set aside the ex parte decree as against those applicants (4 & 5) only, observing that the plaintiff had "cunningly" expunged Rambahal Lal (original defendant) and compromised with other defendants.
Proceedings thereafter involved appointments of guardian-ad-litem for a minor defendant (no. 5), issuance of summons to defendants including 6 & 7, disputed written statements (one purportedly filed on 6 Jan 1925 admitting the plaintiff's claim and later repudiated), a later written statement filed on 11 Feb 1925, and a contested application by the original defendant no. 3 (Rambahal Lal) to be added to the suit (rejected).
The trial court accepted the first written statement as filed by Baldeo Lal (original defendant no. 4), rejected the written statement of defendants 6 & 7, and decreed the suit on confession against Baldeo Lal and Sarjug Lal (original defendants 4 & 5) while the ex parte decree continued against defendants 6 & 7.
Original defendants 4 to 7 appealed to the District Judge, who upheld the trial court's decisions. The matter then proceeded on appeal further (opinion delivered by Chatterji, J., with Adami, J. concurring).

Legal Issues Presented

Whether, in an appeal from a final decree, an order under Order IX, rule 13 (CPC) setting aside an ex parte decree only as against some defendants (and not others) can be challenged under section 105 of the Code of Civil Procedure.
Whether the trial court was correct in treating a written statement purportedly filed on 6 January 1925 as binding on defendants 4 & 5 (Baldeo Lal and Sarjug Lal), notwithstanding their subsequent repudiation and the later written statement filed on 11 February 1925.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff alleged that the rent decree and sale were fraudulent and collusive, orchestrated by defendants 1 & 2, and that the purchase was made in the name of the father of defendants 6 & 7 to defeat her rights.
She alleged that the land was her deceased husband's share, that she and her husband had been in possession (paying rent to the maliks), and that she was dispossessed in 1922 due to a revisional survey entry.
She obtained a compromise with defendants 1 & 2 and successfully applied to expunge defendant no. 3 from the suit (granted without notice to him).

Defendant no. 3 (Malik) — Stated Defence

Contested the plaintiff's suit, denied any concern of the plaintiff or her husband with the disputed land, and maintained the rent decree and sale (obtained against the recorded tenant) were valid and operative.
Denied that the plaintiff was the widow of Kali Lal and alleged that Kali Lal had died during his father's (Chuni Lal's) lifetime.

Defendants 4 & 5 (Applicants under Order IX, rule 13)

Applied under Order IX, rule 13 to set aside the ex parte decree; maintained that summons were not served on them and the ex parte decree should be set aside (and the Court granted that relief as against them).
Later repudiated a written statement said to have been filed on 6 January 1925 on their behalf and asserted that the later written statement filed on 11 February 1925 should be treated as their statement.

Respondent's Arguments (as recorded)

It was urged on behalf of the respondent that because defendants 6 & 7 did not appear or present materials seeking to set aside the decree, they were precluded from contesting the validity of the order setting aside the ex parte decree as against defendants 4 & 5 only.
It was also argued that the question whether the first written statement was actually filed by defendants 4 & 5 was a question of fact and therefore not open for review in a second appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nana Ram v. Bhupal Singh (also referred to as Nand Ram v. Bhupal)	Authority that an order under Order IX, rule 13 setting aside an ex parte decree can be attacked in appeal from the final decree.	The court cited this as supporting the proposition that an order setting aside an ex parte decree may be questioned in an appeal against the final decree; it is treated as an authority in favour of construing section 105 broadly in such circumstances.
Gopala Chetti v. Subbier	Case in which the Madras High Court allowed objection to irregularity of an interlocutory order (under the old law) in an appeal against the final decree.	The court cited Gopala Chetti as an instance where an objection to an interlocutory irregularity was allowed in appeal against final decree and used it to illustrate conflicting authorities; it supports allowing attack on the Order IX, rule 13 order in appeal.
M.S. Mohammed v. The Collector of Toungoo	Authority holding that the propriety of an order setting aside an ex parte decree can be questioned in an appeal against the subsequent decree in the same suit.	The court relied on this case as supporting the view that section 105 need not be read narrowly and that such interlocutory orders can be challenged on appeal from the final decree.
Chintamani v. Raghunath (also cited as Chintamani Dasi v. Raghunath Sahu in another context)	Cited among cases holding that "affecting the decision of the case" in section 105 means affecting the decision as to the merits.	The court acknowledged these cases as representing a line of authority that limits section 105 to orders affecting the merits; used as part of the description of conflicting rulings that the Court sought to reconcile.
Tasadduq Hussain v. Hayatun-nissa	Another case in the line that interprets "affecting the decision of the case" in section 105 with reference to merits.	Noted by the court as part of the body of authorities that view interlocutory errors as not falling within section 105 unless they affect merits; contrasted with other authorities.
Krishna v. Mahesh	Case cited among those treating section 105's scope as limited to orders affecting the decision on merits.	Referenced as part of the conflicting authorities; the court contrasted this view with decisions allowing attack on interlocutory orders in appeals from final decrees.
Mohammad Nurul v. Manohar	Cited as another case in the line interpreting section 105 narrowly to orders affecting merits.	Used in the opinion to describe the conflicting judicial approach on the scope of section 105.
Nisikant v. Umar Lal	Cited among cases supporting the narrow interpretation of section 105.	Mentioned by the court as part of the authorities taking the narrower view; helps to frame the conflict of decisions the court considered.
Chiniamani Dasi v. Raghunath Sahu	Cited as authority to the contrary (i.e., that interlocutory orders wholly allowing applications may not be reopened on appeal).	The court referenced it as representing the contrary line of decisions which had allowed interlocutory orders to stand; the opinion sought to reconcile these authorities by distinguishing cases where the interlocutory order did not affect the ability to decide the suit properly.

Court's Reasoning and Analysis

The Court proceeded in two main lines of analysis corresponding to the central issues.

1. Interpretation of section 105 CPC and its application to the Order IX, rule 13 order:

The Court observed a conflict of authorities on whether an interlocutory order (such as one under Order IX, rule 13 setting aside an ex parte decree) could be attacked in an appeal from the final decree by invoking section 105 CPC. Some cases read the words "affecting the decision of the case" to mean affecting the decision on the merits; other decisions allowed such interlocutory matters to be raised in the appeal.
The Court adopted a reconciliatory approach: where setting aside an ex parte decree merely ensures a hearing on merits, it is not an order "affecting the decision of the case" for the purposes of section 105. But where the interlocutory order produces an outcome that prevents the suit from being properly decided (for instance, where the decree was set aside only as against some defendants though it should have been set aside as against others), the order does affect the decision of the case and hence falls within section 105.
The Court emphasised the proviso to Order IX, rule 13 which permits the Court to set aside a decree as against all or any of the defendants "where the decree is of such a nature that it cannot be set aside as against such defendants only." The proviso imposes an obligation on the trial court to consider whether setting aside only as to the applicants suffices or whether other defendants must also be included.
Applying those principles, the Court held that because the decree and sale were in favour of the father of defendants 6 & 7 (who was the certified purchaser at the sale) and the sale executed under that decree was the immediate cause of the plaintiff's alleged dispossession, the decree could not have been properly set aside only as against defendants 4 & 5. The trial court should have considered setting aside the decree as against defendants 6 & 7 as well.
Consequently, the Court found that the error in limiting the setting aside to defendants 4 & 5 affected the decision of the case and could be attacked under section 105 in the appeal from the final decree.

2. Whether the trial court correctly treated the first written statement (purportedly filed 6 Jan 1925) as binding:

The Court examined the trial court's reliance on the vakalatnama evidence given by Moulavi Abid Hussain, who stated that he could not definitely identify Baldeo Lal at examination but was "satisfied about the identity" before accepting the vakalatnama. The appellate court found this testimony unsatisfactory because the pleader did not explain how he was so satisfied.
The Court also considered the comportment of Baldeo Lal. Baldeo had actively sought to have the ex parte decree set aside (a contested proceeding), appeared to accept appointment as guardian-ad-litem on 22 December, and it was unlikely (the Court reasoned) that he would, only shortly thereafter and before the settlement date, file a written statement admitting the plaintiff's claim. The Court noted procedural events (petition for time on 2 February, issuance and service of summons) that provided plausible explanations for Baldeo Lal's non-appearance earlier and that the trial court did not adequately consider these aspects.
Given the lack of a positive finding by the lower court that the first written statement was genuinely filed by Baldeo Lal, and in view of the unsatisfactory proof and other contextual facts, the Court concluded that the first written statement should have been disregarded and the later written statement filed on 11 February 1925 should have been accepted.
The Court treated the irregularity in treating the first written statement as binding as another matter which affected the decision of the case and thus was open to attack under section 105 in the appeal from the final decree.

Overall disposition of reasoning: In light of the above, the Court concluded that (a) the Order IX, rule 13 order should have extended to defendants 6 & 7 as well, and (b) the court below should not have been bound by the first written statement purportedly filed on 6 January 1925 but should have accepted the written statements filed on 11 February 1925 by the original defendants 4 to 7. These errors affected the ability to properly adjudicate the suit and justified remanding the matter for rehearing.

Holding and Implications

Holding: The appeal court held that the interlocutory order under Order IX, rule 13 (CPC) setting aside the ex parte decree only as against defendants 4 and 5 was erroneous in the circumstances and should have been set aside also against defendants 6 and 7. The court further held that the trial court should have ignored the first written statement (purportedly filed on 6 January 1925) and accepted the later written statements filed on 11 February 1925 by the original defendants 4 to 7. The suit was therefore remanded for re-hearing after acceptance of those written statements.

Implications:

Direct effect on the parties: The trial decree is set aside to the extent it proceeded without properly including defendants 6 & 7 and without accepting the later written statements of the original defendants 4 to 7; the suit is ordered to be reheard on the basis of the written statements filed by original defendants 4 to 7 (including defendants 6 & 7).
On broader legal principle: The opinion clarifies that section 105 CPC may be invoked in an appeal from a final decree to challenge an interlocutory order (such as one under Order IX, rule 13) when that interlocutory order has the effect of preventing the suit from being properly decided — for example, when a decree is set aside only as to some defendants though the circumstances require it to be set aside as to others. The Court reconciled conflicting precedents by adopting this functional approach.
The opinion thus instructs trial courts to consider the proviso to Order IX, rule 13 and to evaluate, in each case, whether the decree can properly be set aside only as to the applicants or whether other defendants must be included to enable a proper adjudication.

Final note: The opinion concludes with Adami, J. concurring with the reasoning and result.

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Baldeo Lall v. Musammat Matisara Kuer

Chatterji, J.:— The facts which have given rise to this appeal are as follows:—One Chuni Lal had three sons, Tilakdhari, defendant no. 1, Lalbehari, defendant no. 2, and Kali Lal, the deceased husband of the plaintiff. The defendants 3 to 5 are the maliks of 3 as. 4 pies patti in mauza Chari forming tauzi P. no. 1430 wherein the disputed land is situated. Defendants 6 and 7 are the sons of one Lala Rambaran Lal who was the zarpeshgidar of a portion of the share of defendant no. 3. The malik defendants along with the zarpeshgidars, defendants 6 and 7, brought a rent suit in respect of the land in suit against defendants 1 and 2 and obtained an ex parte decree on the 13th March, 1916. Subsequently in execution case no. 11 of 1917 the disputed property was put up to sale and purchased in the name of the father of defendants 6 and 7. The plaintiff's case is that the land in suit fell to the share of the plaintiff's husband on a partition between the three brothers and was in his possession and after his death in that of the plaintiff on payment of rent to the maliks. She assails the decree in the rent suit as well as the sale held thereunder as fraudulent and collusive brought about at the instance of defendants 1 and 2 and further that they (namely, defendants Land 2) made the purchase in the farzi name of the father of defendants 6 and 7. She complains that she was dispossessed of the disputed land in 1922 on the strength of the revisional survey entry. On these allegations the plaintiff claims for an adjudication that the decree and the sale in question are collusive, fraudulent and not binding on her, and that the entry in the revisional survey is wrong, and also for recovery of possession of the disputed land. There is a statement that the plaintiff would bring a separate suit for damages and mesne profits against such of the defendants as would be found to be in illegal possession of the land.

The malik, defendant no. 3, filed a written-statement contesting the suit and pleading that the plaintiff or her alleged husband had no concern with the disputed land and that, the decree was obtained against the recorded tenant and this and the sale held, in execution thereof are valid and operative. There was an averment that the defendant did not admit the plaintiff to be the widow of Kali Lal and further that Kali Lal had died during the lifetime of his father Chuni Lal.

Then defendant 1 and 2 entered into a compromise with the plaintiff admitting her claim. After that the plaintiff asked for expunging the name of defendant no. 3 from the category of defendants. The Court allowed that prayer without notice to defendant no. 3 and without hearing him and passed a decree on compromise against defendants 1 and 2 land ex parte against defendants 4 to 7.

After this, the defendant no. 4 for self and as guardian of defendant no. 5 made an application under Order IX, rule 13 of the Code of Civil. Procedure, for setting aside the ex parte decree. The Court by its order no. 17, dated 15th November, 1924, set — aside the ex parte decree as against the said petitioners (namely, defendants 4 and 5). In passing that order the Court made the following observations:—

“Besides the present applicants the only defendant who contested this suit was one Rambahal Lal. The plaintiff cunningly expunged, him and compromised the suit with other-defendants and got ex parts decree against the present applicants. This, clearly shows that the plaintiff is not proceeding bona fide. I accordingly hold that summonses were not served on the applicants and the ex parte, decree will be set, aside.”

It will appear from the quotation made above that the Court had no notice of the fact that the ex parte decree had been passed also against two other persons, namely, defendants 6 and 7. Be that as it may, after, the restoration of the suit plaintiff filed a petition stating that the defendant no. 5 was a minor and praying that he might be represented by defendant no. 4 as his guardian-ad-litem. Notice was issued, to the minor defendant and the proposed guardian and on the date fixed (22nd December 1924) the proposed guardian filed a petition-expressing his consent or to act as guardian-ad-litem of the minor defendant no. 5 and was appointed as such. Then summonses were ordered to be issued to defendants fixing 12th January, 1925, for settlement of issues. Summonses were issued not only against defendants 4 and 5, but also against defendants 6 and 7.

Before the date fixed for settlement of issues and on the 6th January, 1925, a written statement purporting to have been on behalf of defendants nos. 4 and 5 (now described as defendants 3 and 4, because of the elimination of the original defendant no. 3) appears to have been filed admitting the plaintiff's claim. On the 12th January summons was specifically directed to be issued on defendants other than 3 and 4 fixing 2nd February, 1925. On that date defendants 4 and 5 applied for time to file written statements. On the next date, namely, 11th February a written statement was filed by defendants 4 and 5 (now styled defendants 3 and 4); and another written statement was put in by defendants 6 and 7. The suit was adjourned to 13th February. In the meantime, namely, on the 12th February the original defendant no. 3 Rambahal Lal filed a petition to be added as party. On the 13th February the defendant no. 4 (now styled as defendant no. 3) filed a petition supported by an affidavit that the written statement purporting to be filed by him on 6th January 1925 had not been filed by him. After an enquiry into jthe matter the Court held that the first written statement had been filed by Baldeo Lal, defendant no. 4 (at present defendant no. 3). The Court took this view on two grounds, namely, (1) that the vakalatnama was handed over by Baldeo Lal to Moulvi Abid Hussain pleader, who was unable to identify him at the time of his examination but says

“I was satisfied about the identity of this man before accenting vakalatnama from him and filing first written statement”.

and (2) there is no explanation on behalf of Baldeo Lal why he made no pairbi in the suit for 2½ months before 11th February 1925 when the new written statement was filed. The Court rejected the written statement filed by defendants 6 and 7 on the ground that the ex parte decree had been set aside on the application of Baldeo Lal and Sarjug Lal (defendants 4 and 5) as against them, and they have no locus standi to file a written statement. The petition of Rambahal Lal (original defendant no. 3) for being added as defendant was rejected on the ground as alleged

“that there is no provision in the law for doing so.”

After all this the suit was decreed on confession against Baldeo Lal and Sarjug Lal the original defendants 4 and 5. The ex parte decree continued as against defendants 6 and 7. An appeal was preferred to the District Judge by these four defendants, namely, original defendants 4 to 7. The learned District Judge held that the question as to the decree not having been set aside as against defendants 6 and 7 did not arise inasmuch as the Munsif dealing with the application under Order IX, rule 13, had made an order setting aside the decree as against defendants 4 and 5 only and further that the Munsif was right in rejecting the second written statement filed on behalf of defendants 4 and 5 and in proceeding with the case on the basis of the first written statement.

In appeal it is urged that it was competent in appeal against the original decree to question the propriety of the order under Order IX, rule 13, restoring the suit as against defendants 4 and 5 only and that in the circumstances of the present case the entire decree should have been set aside. In support of this contention reference is made to the terms of section 105 of the Code of Civil Procedure, and to the cases of Nana Ram v. Bhupal Singh, Gopala Chetti v. Subbier and M.S Mohammed v. The Collector of Toungoo. On the other hand reference may be made to the cases of Chiniamani Dasi v. Raghunath Sahu and Krishna v. Mahesh.

Section 105 lays down that where, a decree is appealed from, any error, defect or irregularity in any order effecting the decision of the case may be set forth as the ground of objection in the memorandum of appeal. It is settled law that an error, defect or irregularity in the order may beset forth as a ground even where the interlocutory order is one from which no appeal lies. The error, defect or irregularity referred to in this section must be either in law or procedure and not in matters of fact. There is, however, a conflict of decisions round the above affecting the decision of the case in the above section. It has been laid down in a class of cases that the words “affecting the decision of the case” mean affecting the decision of the case with reference to the merits of it. Chintamani v. Raghunath; Tasadduq Hussain v. Hayatun-nissa; Krishna v. Mahesh; Mohammad Nurul v. Manohar; Nisikant v. Umar Lal. On the other hand in Gopala Chetti v. Subbier, the Madras High Court allowed an objection as to the irregularity of an order passed under section 108 of the old Code of Civil Procedure, 1882, in the appeal against the final decree and held that the decree should not have been set aside as against one of the defendants. In Nand Ram v. Bhupal the Allahabad High Court takes the view that an order under Order IX, rule 13, setting aside an ex parte decree can be attacked in appeal from the final decree. In the case of M.S Mohammad v. Collector of Toungoo the view is taken that the propriety of an order setting aside an ex parte decree can be questioned in an appeal against the subsequent decree in the same suit and there is no need to read into section 105 the additional words “on the merits”.

I have carefully considered the conflicting rulings and I am of opinion that section 105 can have no operation to a case where the ex parte decree is set aside and the point is raised that the decree should not have been set aside, at all, because an order so passed merely ensures a hearing upon the merits and cannot be considered to be an order affecting the decision of the case. But where a case cannot be properly decided, because, the decree has been set aside only against some of the defendants but should have been set aside also against others, the order must be considered to be am order affecting the decision of the case and in a case like, that, section, 105, can clearly be invoked. The Calcutta cases dealing-either with section 108 or Order IX, rule 13 dealt with, applications which had been, allowed in their, entirety, and it was held that the propriety of the order could not be reopened. If the view which I have indicated above be taken as the proper view then the conflicting views will be reconcileable.

Bearing this principle in mind let us approach the facts and circumstances of the present case. Now the suit was practically for the setting aside of the decree obtained foot merely by the persons (defendants 4 and 5) who applied for be hearing but also by the father of defendants 6 and 7. The sale sought to be set aside was held in execution of the decree standing in favour of it he father of defendants 6 and 7 as well, and what is more their father was the certified auction-purchaser. It is, therefore, pre-eminently a case in which the decree should have been set aside not merely against the applicants but also against defendants 6 and 7. The original suit cannot in the circumstances of the case be properly adjudicated in the absence of these necessary parties. In fact it is to cover cases like this, that the proviso to Order IX, rule 13, of the present Code of Civil Procedure has been enacted. Rule 13 days down that the decree should be set aside as against the defendant applying for an order to set it aside and then provides that

“where the decree is of such a nature that it cannot be set aside as against such defendants only it may be set aside as against all or any of the defendants also.”

It is urged by the learned advocate for the respondent that when defendants 6 and 7 did not appear to set aside the decree and no materials were evidently placed before the Court that the decree should be set aside as against them as well these defendants; are precluded from contesting the validity of the order. Now, the proviso itself makes it clear that even if a particular defendant does not apply for the decree to be set aside it is open to the Court to set it aside against him, if the circumstances of the case, so demand. It is the bounden duty of the Court to look to the facts of each particular case and consider whether the decree should be set aside against the petitioner only or against other defendants as well. The Court cannot shirk this obvious duty and it cannot be maintained that because defendants 6 and 7 did not appear and submit proper materials before the Court, the Court was justified in passing an improper or wrong order. Seeing that the decree sought to be set aside was passed in favour of the father of defendants 6 and 7 and that the sale by virtue of which the plaintiff is said to have lost her possession was in execution of that decree, and remembering also that the father of defendants 6 and 7 was the certified purchaser and represented along with defendants 4 and 5, the joint body of landlords, the ex parte decree should not have been set aside only against some of the decree-holders who had made the application for setting it aside. The error, defect or irregularity in this particular order affects the decision of the case, because the suit cannot be effectively decided in the absence of defendants 6 and 7 who along with others represented the joint body of landlords who had obtained a decree and caused the sale thereunder. Consequently I am satisfied that this is a matter which falls within the purview of section 105. I am therefore, unable to agree with the view taken by the learned District Judge that the propriety of the order under Order IX, rule 13, cannot be questioned in the present case. I find that the propriety of order can be questioned and that the decree should have been set aside against defendants 6 and 7 as well.

It is next urged that defendants 4 and 5 should not have been pinned to the written statement purporting to have been filed on their behalf on the 6th January, 1925, and repudiated by them soon afterwards. In reply it is urged on behalf of the respondent that this is a question of fact which we are precluded from going into in a second appeal. Now the learned District Judge has not come to a definite finding that the original statement was actually filed by the defendants 4 and 5. All that he says is that there is no adequate ground for disbelieving the evidence of Maulavi Abid Hussain and the learned Munsif was, therefore, right in rejecting the second written statement and proceeding with the case to decide it on the basis of the first written statement. Now this pleader Maulavi Abid Hussain has stated as mentioned in the order of the trial court that he could not identify Baldeo Lal (defendant no. 4) at the time of his examination. This is what this gentleman has stated in his evidence:—

“I cannot definitely say if Baldeo Lal who is present in this hall was the person who handed over this vakalatnama to me. I can only say that I was satisfied about the identity before accepting the vakalatnama.”

He does not say how he was satisfied about the identity; so this evidence on which reliance is placed by the learned District Judge does not carry us far. Then this Baldeo Lal made an application under Order IX, rule 13, for setting aside the ex parte decree. That proceeding was strenuously, contested by the plaintiff but succeeded on the 15th November, 1924. On the 22nd December after the service of notice regarding the appointment of guardian of the minor defendant no. 5 he appeared in Court and filed an application expressing his consent to act as guardian-ad-litem. This appearance clearly indicates that he wanted to contest the suit so that an officer of the Court might not be appointed. Is it likely he will soon after, namely, on the 6th January, 1925 and even before the date (12th January 1925) fixed for settlement of issues appear and file a written statement admitting the claim? This is inconsistent with the ordinary course of human conduct, especially when it is remembered that the ex parte decree was set aside at his instance after a considerable fight. On the 2nd February defendant no. 4 applies for time to file written statement on his behalf and on behalf of his ward. If really the written statement had already been filed on 6th January why would he make this petition for time. The learned Munsif in accepting, the first written statement as actually filed by him was influenced by the consideration, as stated in his, order, that this defendant did not take any steps for about two months before the filing of the written statement on the 13th of February. It will appear that he did actually appear on the 22nd December to express his consent to act as guardian-ad-litem. On that date he was appointed as guardian as prayed for and an order was passed directing issue of summons to the defendant fixing 12th January for settlement of issues. This defendant would naturally labour under the impression that summons would be served upon him and it is, therefore, that he did not appear on the 12th of January but appeared later on the 2nd February, the order of which date runs as follows:—

“Summons served. Plaintiff present. Defendants apply for time.”

Therefore, one can get sufficient explanation for his non-appearance before the 2nd of February, that is on the 12th of January. All these aspects have not at all been considered in the courts below and bearing in mind that there is no positive finding of the lower court that the original written statement was actually filed by defendants 4 and 5 I am of opinion that the first written statement should have been ignored and the Court should have accepted the later-written statement filed on the 11th of February, 1925, by defendant Baldeo Lal and his ward. The irregularity of this order can certainly be assailed in appeal from the final decree, because it affects the decision itself.

The suit must therefore go back for re-hearing of the case after the acceptance of the written statement filed by the original defendants 4 to 7. * * * * * * *

Adami, J.:— I agree.

Baldeo Lall v. Musammat Matisara Kuer

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant no. 3 (Malik) — Stated Defence

Defendants 4 & 5 (Applicants under Order IX, rule 13)

Respondent's Arguments (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Baldeo Lall v. Musammat Matisara Kuer

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