Kashirao Panduji v. Ramchandra Balaji

1. This is a revision by the defendant (applicant) from an appellate order upholding the order of the 1st Court refusing to set aside an ex parte decree passed against him on 26-10-1944 in Civil Suit No. 265 of 1944. The relevant facts are these:

The first hearing of Civil Suit No. 265 of 1944 was on 11-9-1944 and the summons was served on the defendant (applicant) on 21-5-1944. The defendant was absent at the hearing and the Court deciding to proceed ex parte against him fixed the case for ex parte evidence on 26-10-1944.

2. On 18-9-1944 the defendant was granted a certificate by the doctor under whose treatment he then was that the defendant was suffering for the last two months from bleeding piles and being very anaemic on that account was unable to move about. The defendant resides in the interior of the tahsil some miles away from Daryapur. On 22-9-1944 he applied to the Court for setting aside the ex parte order passed against him and produced the doctor's certificate in support of the application. The application was rejected summarily the same day and the order of rejection runs as follows:

“…. Application is not supported by affidavit. It does not disclose reason sufficient to set aside ex parte order. Defendant was served in last May and with little diligence be could have obtained adjournment. Application is summarily rejected with costs.”

3. On 26-10-1944, ex parte evidence of the plaintiff was, recorded in the absence of the defendant and ex parte decree was passed. The plaintiff had summoned three witnesses for the hearing but he examined none but himself and closed his case. On 7th November 1944 the defendant filed his application to set aside the ex parte decree passed against him supported by an affidavit and the doctor's certificate (the same which was produced before). This application was opposed by the plaintiff (non-applicant). It was dismissed on 20th January 1945 summarily and the operative part of the order runs as under:

“On 22nd September 1944 an application to set aside the ex parte proceedings had been filed. The case came up for final disposal on 26th October 1944. No appearance was put on 26th October 1944 and claim was decreed after ex parte evidence. The application to set aside the decree is within time. The same is opposed by Mr. Vaidya.

I am not satisfied that defendant exercised vigilance expected of him. He allowed the case to proceed ex parte pugnaciously. The application is dismissed as there is lack of bona fides.”

4. This order was upheld in appeal and the operative part of the appellate order runs thus:

“The summons was duly served on the defendant appellant on 21st May 1944. The second ground was urged in the previous application dated 22nd September 1941 and was rejected. He has not appealed against that order and so he cannot now say that order is wrong. His remedy thus in this case is barred by way of application. He could appeal against the ex parte decree not the order. The previous application for absence of appearance was not supported by any affidavit or the Court to act upon. Under the added proviso to R. 13 by ode High Court, the Court should not set aside the ex parte decree if the defendant had sufficient time after service to come and put in his defence. The defendant was served on 21st May 1944 and had 4 months time to come and put in his defence. He could instruct his pleader through some one else as he did for the application dated 22nd September 1944. The lower Court was thus justified in coming to the conclusion that the defendant was guilty of negligence and allowed the ex parte order to be passed deliberately.”

5. The plaintiff (non-applicant) is the holder of survey No. 30/1 area 11.35 acres and the defendant is the holder of survey No. 30/2 area 4,22 acres. The plaintiff's case was that in June it is the defendant had taken wrongful possession of 14 gunthas with trees out of his field No. 30/1 and that he should be restored to the possession of the same. The claim is such as is either correct or not correct to the defendant's knowledge. If it is correct then I do not as the point in the defendant's spending his money and time in having the ex parte order and the ex parte decree set aside. If on the other hand it is not correct then I do not understand why he would deliberately allow the plaintiff to have an easy victory by permitting an ex parte order or an ex parte decree passed against him. The land in dispute is nearly ⅓ of an acre with trees thereon and is not thus, negligible.

6. It is clear from the doctor's certificate, the correctness of which is not disputed, and I have no reason to doubt, that the defendant was ill during the relevant period and was not able to move about. It is not unlikely that he may have expected to recover sufficiently to move about so that he may be able to go to Daryapur to enage and instruct a counsel for defending the suit. In the absence of any oral evidence on record the exact reason why he was not able to send some one to Daryapur on 11th September 1944 with an application praying for adjournment is not known.

7. The applicant's application under O. 9, R. 7 of the CPC, was dismissed, as it appears from the order dated 22nd September 1944, on the ground that he failed to show sufficient reason to set aside the ex parte order and that he was guilty of want of due diligence in applying for an adjournment. The application for setting aside the ex parte decree was rejected merely as a necessary corollary of the order passed on 22nd September 1944. It is thus evident that if the order dated 22nd September 1944 is set aside, the subsequent order dated 20th January 1945 and the appellate order should be set aside.

8. As already said above, I do not find any motive for the applicant in allowing the ex parte order and decree being passed against him and the learned counsel for the non-applicant was not able to suggest any quite satisfactorily. The applicant even assuming that there was to some extent want of diligence on his part in not applying for an adjournment on 11th September 1944, did come to the Court on 22nd September 1944 i.e long-before the date 26th October 1944, for which the case was adjourned. It was quite possible for him, if the Court had permitted him, to put in his defence and to be ready with his evidence on 26th October 1944. The Court did not permit him to put in his defence and it was naturally thought inadvisable to take part in the trial on 26th October 1944 which would deprive him of the opportunity to have the decree passed set aside under O. 9, R. 13 of the CPC.

9. The order dated 11-9-1944 was, in my opinion, passed under a total misapprehension of law. The Court misdirected itself into thinking that the order could be set aside only on sufficient cause being shown. The distinction between ‘good cause’ required under O. 9, R. 7 and ‘sufficient cause’ required by O. 9, R. 13 was completely overlooked. There may be a good cause for the non-appearance though not a sufficient cause, and, in my opinion, the applicant's illness as prima facie established by the doctor's certificate was at any events a ‘good cause’ for setting aside the ex parte order, subject to such terms as the Court may have thought fit to impose. The learned Judge was obviously under a mistake in the exercise of jurisdiction and in my opinion the rejection of the defendant's prayer on 11-9-1944 was not also a sound and judicial exercise of discretion vested in him. The learned Judge has not in his order made a reference to the doctor's certificate and failed to see that it was a much better evidence than an affidavit in support of the applicant's illness.

10. The suit was just in its initial stage. In A.I.R 1922 Bom. 3451 it is held that if a party appears before the case is actually heard, he has a right to be heard. The provisions of O. 9 are never meant to be penal provisions, and it is only in clear cases of gross negligence and misconduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case which evidently can only be done when both parties have full opportunity of placing their case and their evidence before the Court.

11. In 56 ALL. 5782 it is observed that in the absence of any clear motive for the defendant to have deliberately absented himself from the Court on the date fixed for hearing of the case, the Court should hold that the defendant made out sufficient cause for his non-appearance on the date fixed for hearing. The rules of procedure should not be so strictly applied as to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and he deliberatey remained absent to achieve that motive. This is also the view taken in 46 Mad. 603 and I.L.R (1938) Bom. 829.4

12. On rejection of his application to set aside the ex parte order, it was open for the applicant to wait till ex parte decree was passed and then to take advantage of the remedy provided by O. 9, R. 13 of the CPC. The applicant is no doubt required at this stage to show ‘sufficient cause’ and what is a sufficient cause is-often held to be a question of fact. The learned Judge did not however proceed regularly in disposing of the application as he did in the summary manner, without giving an opportunity to the parties to adduce evidence. In the present case, the evidence of the applicant and of the doctor would, in my opinion, have been of much value in deciding the application to set aside the ex parte decree. The learned Judge had in fact no basis in support of his observations that the case was allowed to proceed ex parte pugnaciously and that there was lack of bona fides on, the applicant's part.

13. The appellate Court, as also the first; Court, have not kept in view the distinction between mere want of required degree of diligence and misconduct involved in the defendant's absenting himself deliberately. It is this which vitiates the order passed against the applicant. The appellate Court has even gone further and observed that the applicant should have appealed against the order dated 22-9-1944 and as he has not appealed he cannot now urge that the order was wrong. According to the learned Judge the remedy under O. 9, R. 13, was barred on account of the rejection of his application to set aside the ex parte order. That this is not the correct view of law is clear from the decisions in 10 C.P.L.R 455 following 8 Cal. 272.6 The learned Judicial Commissioner in that case held that the Court has jurisdiction under S. 108 (O. 9, R. 13) to set aside an ex parte decree notwithstanding the fact that under Section 101 of the CPC (O. 9, R. 7) the Court had refused to hear the defendant.

14. The learned counsel for the non-applicant supported the appellate order and further urged that this Court cannot and at least should not, interfere in revision as the Courts below have come to a conclusion that no sufficient cause was established by the defendant-applicant, and also as the defendant had another remedy open viz., by way of an appeal against the ex parte decrees and did not avail himself of the same. I have already observed above that there is in fact no definite and judicial finding of want of sufficient cause and that such a finding has not been reached after due inquiry. The rule as to non-interference in revisions when another remedy is open is not rigid, as observed by Sen, J. in I.L.R (1916) Nag. 686.7 Each case must be considered on merits.

15. I am not satisfied in this case that the Courts below have applied their judicial mind to the disposal of the applications. It may be that with proper vigilance the defendant-applicant could have avoided the ex parte order and consequently the ex parte decree being passed against him and for this reason the Court could have duly compensated the plaintiff (non-applicant) and mulcted the defendant-applicant in costs.

16. I hereby set aside the ex parte order and the ex parte decree but award no costs to the applicant in this Court. The applicant would also pay Rs. 25 to the plaintiff (non-applicant) as a condition precedent to his putting in his defence in the first Court. The revision is allowed without costs. Counsel's fee Rs. 25.

17. Revision allowed.