S M RAJA GOUNDAR Vs. CHOOLAI SABAPATHI MUDALIAR

JUDGEMENT

(1.) O. S. No. 100 of 1947 on the file of the Court of the District Munsif of Vellore, stood posted for hearing to the 18th February 1948 and on that day the presiding officer was on casual leave. The case was, therefore, adjourned to 43- 1948 on which date the defendant did not appear. An 'ex parte' decree was passed against him as prayed for by the plaintiff. I. A. No. 356 of 1948 was filed by the defendant to set aside the 'ex parte' decree on the ground that he was not aware of the date to which the case had been adjourned, that he had been under the impression that the adjourned date was the 5th March 1948 and on the 'bona fide' belief that the case would be heard only on 5-3-1948 he did not attend court on 4-3-1948 or engage his counsel to conduct the same.

(2.) Both the lower courts have disbelieved the plea of the defendant chiefly on the ground that the defendant did not offer himself for examination to prove the allegations contained in his affidavit. The learned District Judge says that the vakil for the defendant in the Court of first instance refused to put the defendant into the witness box although requested to do so by the opposite side; and, therefore, what was peculiarly within the knowledge of the defendant was withheld from the knowledge of the Court. For these and other reasons, the application under Order 9 Rule 13, C. P. C. which was rejected by the trial Court shared the same fate at the hands of the court of appeal.

(3.) In revision it is contended before me by the learned counsel for the petitioner that whatever might be the merits of the case, the lower courts acted without jurisdiction in not setting aside the 'ex parte' decree for the reason that the adjournment of the case from 18th February 1948 to the 4th March 1948 was illegal and 'ultra vires' the powers of the officer who ordered it. It is urged that, on the absence of a Judge or presiding officer on a particular day, the chief ministerial officer has no jurisdiction to adjourn the cases posted for that date, and such being the case the adjournment to 4-3-1948 was entirely outside the powers of the ministerial officer and Jf that is so, a case wrongly posted to a date by an unauthorised person need not be attended to by the parties to that litigation. For this contention reliance was placed on two decisions of the Lahore High Court, each by a Single Judge. In the first of them -- 'Hukam Chand v. Mani Shibrat Dass', AIR 1934 Lah 984, Hilton J. expressed the opinion that when a Judge is absent the clerk has no power to fix the adjournment date and failure to appear on a date so fixed does not justify the dismissal for default. The learned Judge relied upon an earlier decision of the same Court reported in -' Jowala Sahi Dhera Shah v. Maya Das', 33 Punj LR 804. The learned Judge was further of opinion that the absence of the party, on such an unauthorised adjourned date would not amount to any negligence on his part. The second of the Lahore cases is by Agha Haidar J. in -- 'Gulam Haidar v. Diwan Iqbal Nath', AIR 1936 Lah 1000, where the learned Judge relying upon the earlier decisions in -- 'Jowala Sahai Dhera v. Maya Das', 33 Pun LR 804 and in --'Lalta Prasad v. Nand Kishore', 22 All 66 FB, held that where the adjourned dates have been fixed by the reader of the Court who has altered the dates signed by the Subordinate Judge, such practice is wholly irregular end should be put an end to. In this case it does not appear from the facts stated that the adjournment was on account of the absence of the presiding officer for illness or for other reasons. 'Ex concessis' it has to be admitted that when there is a presiding officer in a court and when he adjourns the case to a particular date the clerk or the reader has no right to alter the date at all; and therefore this latter case of Lahore has no bearing so far as the facts of our case are concerned. .