Majeti Nagaratnam v. Pachigolla Ramayya

In this case the final hearing was adjourned to the 30th September 1912 and the Subordinate judge directed that the defendant should be present to be examined on that date. When the case came on to be heard his pleader, according to the Subordinate Judge, represented that he wanted an adjournment and that he was not prepared to go on with the examination of witnesses.

The affidavit filed in the Lower Court by the party contains this averment, namely, “As your Court did not grant an adjournment, my vakil said that he had no instructions to proceed with the case.”

This was uncontradicted and I must take it that it correctly states the facts. The Subordinate Judge, thereupon, proceeded to dispose of the suit by examining one of the witnesses for the plaintiff. The defendant applied to set aside that decree on the ground that he must be deemed to have been ex-parte at the adjourned hearing and that O. 9, R. 13, Civil Procedure Code, applied to this case.

The Subordinate Judge is of opinion that as he disposed of the case on the merits, the proper rule applicable is R. 3, O. 17. I cannot agree with this conclusion. O. 17, R. 3 only applies where, on the application of one of the parties, the Judge directs a particular act to be done on the adjourned hearing and the party is unable to perform that act. In this case, as I have already mentioned, the Judge directed the defendant to appear for examination before he gave judgment in the case. R. 2, O.17 applies to this case.

The question for consideration under that rule is whether the defendant can be regarded as having been ex-parte because his pleader intimated to the Court that he had no instructions to go on with the hearing. Having regard to the recent judgment of their Lordships Justice Wallis and Justice Krishnaswamy Iyer in Chandramathi Ammal v. Narayanasami Aiyar, I must hold that the defendant must be deemed to have been ex-parte on the adjourned date and that the Subordinate Judge was bound to proceed to dispose of the application under O. 9. The intimation by the pleader that he had no instructions, coupled with the affidavit filed by his client, must be read as meaning that he had only instructions to apply for adjournment and that he was not prepared to conduct the case. Under these circumstances it must be taken that neither the pleader nor the party appeared.

The Subordinate Judge has not considered the question whether on the affidavit a proper explanation has been given for nonappearance on the adjourned date. He will do this now. I reverse his order and direct him to take the application on his file and dispose of it according to law. Costs to abide.

Petition allowed.