K GMANI Vs. J HLEUTIN

JUDGEMENT

(1.) In O. S. 468 of 46-47 of the Court of the First Munsiff, Bangalore, the Respondent who was the plaintiff sued a firm of which the petitioner was alleged to be a partner with two others for recovery of money said to be due under a cheque. There is no mention in the pleadings of the person who signed the cheque. The petitioner was ex parte but the other two defendants contested the suit. Finally on 31-5-1943 the suit was dismissed for default of plaintiff's appearance. More than 4 years later on 15-7-1952 respondent filed an application under Sections 161, 152 and 153, Civil P. C., for amendment of the decree so as to make petitioner liable for payment of the amount claimed in the suit. The amendment has been allowed and correctness of this has been questioned in this petition for revision.

(2.) The lower Court seems to be of opinion that the fact that petitioner was treated ex parte and that he dad not get it set aside is enough or makes it necessary to hold that the suit could not be or was not intended to be dismissed against, him. I do not think that this is a correct view. Rule 8 of Order 9, Civil P. C., provides for a decree being passed in favour of the absent plaintiff only when there is an admission of the claim by a defendant in whole or in part and not merely because the defendant is ex parte. Placing the defendant ex parte cannot by itself mean that the suit is decreed against him. It would affect this right to reopen or participate in the proceedings. See -- 'Perumal v. Kondama', AIR 1939 Mad 385 (A). No decree is drawn up when the defendant is treated ex parte and the plaintiff cannot enforce the claim against such defendant.

(3.) The orders to treat the petitioner ex parte for dismissal of the suit subsequently were not made by the learned Munsif who has allowed the amendment but by his predecessor. Apart from what the proceedings indicate, it is not possible to assume or infer anything as to what was in the mind of the court when the orders were passed. The terms of the orders and the provisions of law bearing on the same do not justify the amendment of the decree by imposing a liability for the amount claimed on the petitioner.