This Civil Revision Petition is against the order of the lower Court holding that it has no jurisdiction to entertain a petition to set aside certain findings recorded by it on 28th October, 1926 in O. S. No. 64 of 1925.
The facts are as follows: O. S. No. 64 of 1925 is a suit for partition. A preliminary decree had been passed and an enquiry into accounts was ordered. It was posted for 27th October, 1926 the defendant having undertaken to produce his witnesses on that day. On that day when the suit was called on for hearing the defendant's pleader asked for an adjournment on the ground that defendant was ill and could not appear and that his witnesses also were absent. The adjournment was refused. P. W. 15, witness for the plaintiff, then went into witness box and was examined and the defendant's pleader cross-examined him. Plaintiff's case was then closed and the Court called on the defendant's pleader to put forward his case. He then said he had no instructions and presumably retired from the case. The Court adjourned the case for findings on the evidence recorded to the next day and on that day findings were pronounced and the case was adjourned to 15th November, 1926 for further proceedings by way of division of the property. On 10th, November, 1926 defendant's vakil put in a petition asking the Court to set aside what he called the ex parte findings. The Court rejected that petition, holding that the defendant was not absent in the legal sense, that the findings were not ex parte and that O. 9, R. 7 has no application. The defendant comes up in revision.
It has been pointed out by the respondent that the final decree in the suit was passed on 29th November, 1926 before this petition was filed in this Court, and it is contended that therefore it is not open to the petitioner to have the matter raised by way of revision since he can raise it by way of appeal against the final decree. It is not however an invariable rule of this Court that it will not interfere in revision when a party has another remedy open to him although certainly in such cases it would require very strong grounds to induce the Court to interfere. My attention has not been directed to any case in which this Court has interfered in revision to set aside an interlocutory order or finding in a suit on a petition presented after the final disposal of that suit by the lower Court. The petitioner obviously has his ordinary remedy by way of appeal. This is not a case in which the order under revision is an order absolutely without jurisdiction as was the case in V. Manickam Pillai v. Mahudam Bathummal(1) relied on by the petitioner.
I have however heard the case on the merits in order to see whether there are any very strong grounds for interfering at this stage, or for supposing that the matter cannot be adequately dealt with on appeal. It appears to me that it by no means follows as a matter of course that a reversal now of the Subordinate Judge's order will entail the cancellation of the decree now passed. A reversal of that order would at the most lay down that the Court was mistaken in holding that it had no jurisdiction to entertain the petition and set aside its finding; but there is nothing in that which would ipso facto involve a cancellation of the decree.
It is not however necessary to consider this point further as I am of opinion that the Subordinate Judge is right in his view that the petition was not ex parte when the evidence on the findings was taken and the findings delivered. It is not necessary of course that a party should be formally placed ex parte before he becomes ex parte and if the Subordinate Judge was under that impression that is an erroneous one. A party is ex parte or not according as he had not or bad appeared within the meaning of that term as used in O. 9.
It is argued for the petitioner that when his vakil in answer to the Court's direction to open his case for the defence, stated that he had no instructions to do so, the defendant's appearance, which had lasted up to that point of time in the case, ceased and that therefore for the rest of the hearing it was a case of non-appearance by the defendant. The logical result of such a contention would be that the moment a party or his vakil sees that the evidence or order or judgment in the case is going or likely to go against him the vakil can say that he has no instructions and compel the Court's order to become an ex parte one, and thus either gain time to reconstruct his position or to have whatever order is passed subsequently revised by the Court or at least have a chance of its being revised by the Court or by the High Court. I should be very reluctant to interpret the relevant provisions of the Civil Procedure Code in such a way as to give scope for this sort of reprehensible tactics and thus take the conduct of the case virtually out of the hands of the Court and put it at the mercy of the vakils or parties. I do not think the Code contemplates any such proceeding.
The rule which is called in aid is O. 17, R. 2 which relates back to O. 9 and the rule under O. 9 which applies is R. 7 which relates back to R. 6. R. 6, says that where the defendant does not appear “when the suit is called on for hearing” then certain results follow. Two interpretations of that phrase seem reasonable and only two first, (when an appearance under O. 9 is in question, that the rule is limited to the first day of hearing so as to distinguish between these provisions and those of O. 17, R. 2, and secondly (when an appearance under O. 17 is in question, that it is limited to the commencement of the hearing on each day of hearing. It is unreasonable to hold as defendant would contend, that the suit is in a continuous state of being called on for hearing so long as it is being heard. Defendant attempts to support his argument by reference to cases in which it has been held that when an application by a vakil merely for an adjournment is refused and then he reports no instructions there has been no appearance of the party—See Arunachala Goundan v. Katha Goundan, Manickam Pillai v. Rathummal(2) Satish Chandra Mukerjee v. Ahara Prasad Mukerjee(3) and Soonderlal v. Goorprasad(4), the argument being that the hearing must have already begun when the discussion on the application for adjournment was being heard. But such cases seem to me clearly distinguishable. The matter then being heard is whether or not the hearing of the suit is to go on and the decision is whether the hearing will or will not go on. But when the real hearing of the suit has begun, witnesses for the other side have been examined, and the vakil appears for the party and cross-examines these witnesses, I do not see how it can be reasonably held that, when the Court calls upon him to enter on his defence, it is calling on the suit for hearing within the meaning of R. 6. I am clear that R. 6 was not intended to imply that a party or his vakil may drop out of the suit at any stage he chooses, so as to pub himself in a position to say that the remainder of the hearing was a hearing ex parte and therefore liable to be revised and cancelled.
I need not in this case go so far as to lay down that, where a vakil, when the suit is called on for hearing, informs the Court that his instructions are limited to some particular function or stage in the case, and the Court then decides to go on with the hearing, the bearing beyond that function or stage will not be a hearing ex parte. In the present case no such information was given to the Court before the hearing was taken up. I therefore agree with the lower Court that this is not a case of non-appearance to which O. 9, Rr. 6 and 7 apply and I dismiss the revision petition with costs.
K. V. S.Petition dismissed.