SULAIHA UMMAL Vs. NOOHUKKANNU

JUDGEMENT

(1.) The defendant in O.S. 395 of 1950 on the file of the Kottarakara Munsiffs Court is the petitioner in this revision. There was a decree passed ex parte in that suit against her on 28.7.1950 which was the date to which the case was first posted. The summons was served upon the defendant on 10.7.1950. There was therefore an interval of only 17 clear days between the date of the service of summons and the date of hearing. R.482 of the Travancore Civil Courts Guide of the year 1120 provides as follows:-

(2.) The petitioner did not take this objection before the Munsiff nor did he take it in the memorandum of appeal presented before the District Judge. He however raised it before the Judge at the hearing and the objection was considered by the Judge who was of the opinion that the provision contained in the Civil Courts Guide as regards the interval of certain number of clear days between the date of service of summons and the date fixed for hearing the case is not mandatory and as such the violation of the rule would not result in enabling the defendant, for that reason, to have the ex parte decree set aside. The learned Judge followed the decision in XXV TLJ 1217 followed in XXIX TLJ 1201. The earlier decision relates to a case of the year 1105 and the Civil Courts Guide then in force was the one prior to that of the year 1120. Note 3 to R. 482 which forbids cases being decided in contravention of the rule was enacted by Circular No. 1 of 1109. That circular had not been issued at the time of the event that led to XXV TLJ case nor was that circular which had been issued by the time of the decision read or dealt with by the Judges. They proceed on the basis that such a circular did not exist. Even if it was brought to their notice, it may not have been applied because, as already stated, the event related to a period before the circular was issued. XXIX TLJ merely follows the earlier decision. The suit in that case was of the year 1107 and the application by the defendant was in the year 1109. Whether the application was before on after the circular of that year does not appear. In XXIX TLJ also the Circular is not referred to or considered. There was a dissenting view taken in the Travancore High Court in the case reported in XIX TLJ 690 which held that even apart from the Circular, the provision in the Civil Courts Guide fixing certain interval as sufficient time for the defendant to appear is mandatory whose violation would be fatal to the decree pressed. XXV TLJ refers to O. IX R. 6 but takes the view that the onus is upon the defendant to prove that he had no sufficient time. With great respect to the learned Judges it appears to me that a true construction of O. IX R. 6, Cl. (c) would not cast any such burden of proof upon the defendant. Though there is no coma in that clause after the word defendant to understand it properly, the first part of the clause if it is proved that the summons was served on the defendant must be read with a pause after the word defendant and the subsequent portion but not sufficient time ..................... day fixed in the summons must be regarded as a separate portion regarding which there is no burden of proof cast on the defendant. It is on this construction of the second part of the clause that the Civil Courts Guide fixes particular number of clear days that should intervene between the date of service of summons and the date of hearing, ten days for small cause suits, 20 days for original suits in the Munsiffs Court and 30 days for original suits in the District Court.

(3.) In the Cochin High Court, the view taken has always been that the rule fixing the number of clear days as the interval between the date of service of summons and the date fixed for the appearance of the defendant is mandatory. R. 237 in the Civil Rules of Practice is the relevant provision which is similar to that contained in R. 482 of the Travancore Civil Courts Guide except that the number of days is less namely 7 and it is uniform for all types of cases and in all courts. VIII Cochin 317 and XI Cochin 23 are the decisions which have taken the above said view. In my judgment the provision in the Travancore Civil Courts Guide and the Cochin Civil Rules of Practice fixing a certain number of clear days as the interval between the date of service of summons and the date of hearing of the case is mandatory. The number of days are the statutorily fixed sufficient time which the defendant is entitled to, to enable him to appear and answer the claim made against him. It is only in the event of this number of days intervening that the defendant is under an obligation to appear on the day fixed in the summons for the hearing of the case. If the number of clear days do not intervene between the said two dates, the defendant is not under an obligation to appear and no consequence adverse to him would ensue on account of his nonappearance. R. 6 of O. IX directs the court to postpone the hearing of the case in such an event to a future day and to give notice thereof to the defendant.