V K MOHAMED ROWTHER Vs. CHENNAPAIYA

JUDGEMENT

(1.) THIS is an appeal against an order passed on an interlocutory application in o. S. 24 of 1945 on the file of the Subordinate Judge, Salem. The learned Judge has dismissed the application of the appellant (14th defendant) under O. IX, R. 13, c. P. C. , for setting aside the ex parte decree passed against him in the suit after remand of the same by the High Court. The suit was by a reversioner for setting aside various alienations. The appellant is one of the alienees who purchased a certain item for valuable consideration. Originally, the suit was decreed ex parte on 31-3-1952. A number of alienees including the appellant filed an appeal to this court, and the suit was remanded to the lower court for fresh disposal by an order dated 19-11-1959. The lower court received the material records on 27-7-1960 and the suit was posted for appearance of parties on 30-8-1960 on which date the respondents (Plaintiffs) alone appeared by counsel and the defendants including the appellant were absent. The suit was adjourned to 15-9-1960. As nobody appeared, the defendants were set ex parte. As the respondents had filed a petition to bring the legal representatives on record, the suit was adjourned to various dates. Finally, the decree was passed on 3-11-1960. The appellant filed the application for setting aside the ex parte decree within the period of limitation.

(2.) THE only point that arose for consideration was whether the appellant was prevented by sufficient cause from appearing on the date when he was set ex parte. The appellant gave his reasons that after remand he was not aware of the date when the suit would be posted for fresh trial, though he was making diligent enquiries in regard thereto. Not satisfied with this explanation, the learned judge dismissed his application. Against this order of dismissal, the 14th defendant has now preferred the appeal.

(3.) LEARNED counsel for the appellant contended that notice was not given to the appellant, as to when the suit was posted for fresh trial. Therefore, the only point that arises for consideration is whether after remand of the suit it is absolutely necessary to give notice to the parties, as to when the suit would be taken up for rehearing. In this case, admittedly no notice was sent to the appellant herein. To my knowledge, there is no specific provision in the Civil Procedure Code or in the civil Rules of Praetice, that notice is necessary to the parties after remand. Therefore I sought the assistance of Sri V. C. Viraraghavan, Advocate and secretary, Rules Committee, to acquaint me whether there is any convention or practice prevailing in the lower courts to issue notice to the parties after remand. After making enquiries in the City Civil Court, he has informed me that the practice in that court is to issue notice to both sides intimating the date of hearing after the remand order and that before issuing notice orders of the court are obtained. When I asked learned counsel whether any such practice prevailed in the mofussil courts, he could not say definitely whether any such practice prevailed there. I am of opinion that, in the interests of justice, after remand of the suit for fresh trial, notice should be given to the parties intimating the date of hearing of the suit. In the instant case, the appellant is residing in some village far away from Sub Court, Salem. There is nothing on record to show whether he retained the same counsel who appeared for him originally and if so whether he was aware of the remand order and the date of hearing. But there is evidence to show that the appellant went to the court two or three times to ascertain about the suit but could not know anything about the hearing date.