ABDUL AZIZ Vs. A RAJ CHHABRA

JUDGEMENT

(1.) I have had the advantage of going through the judgment prepared by my learned brother and though I agree with the ultimate order proposed to be passed in the case, I would like to add a few words of my own.

(2.) THE facts of the case do attract the provisions of Order IX, Rule 13 of the Code of Civil Procedure. Under Rule 21 of Order XI of the Code of Civil Procedure if there is a failure of compliance with any order to answer interrogatories or for discovery or inspection of documents, then if the defaulting party is a plaintiff, he is liable to have his suit dismissed for want of prosecution and if a defendant, to have his defence struck out and to be placed in the same position as if he had not defended. There is thus a difference between the case of a plaintiff if he is the defaulter and that of a defendant if he is the defaulter. In the former case the suit is liable to be dismissed for want of prosecution as a result of the default and if the court thinks fit to enforce the provisions of this rule, the plaintiff's suit has to be dismissed straightway for want of prosecution. But in the case of a defendant in the case of his default, the suit is not to be decreed ex parte but the defence is to be struck out and the defendant is to be placed in a position as if he had not defended himself. Before deciding the case, therefore, one more step has to be taken, namely, the taking of evidence in order to decree the suit ex parte in case the defendant even after his defence had been struck out, does not put in appearance. Order XLIII gives a right of appeal to the plaintiff as well as the defendant whosoever may be the defaulter and against whomsoever an order is passed under R. 21 of Order XI. The appeal in case the defaulting party is the plaintiff will be against the dismissal of the suit for want of prosecution. But if the defaulting party is the defendant, it will be against the order striking out his defence and placing him in the same position as if he had not defended. In the case of the defendant the appeal will not be against the order decreeing the suit ex parte. It is not even necessary that the suit be decreed ex parte in the case of a defendant as it is in the case of a plaintiff necessary that it should be dismissed for want of prosecution. Even after the defence of the defendant has been struck out and he has been placed in a position as if he had not defended, the Court may find that the case has not been made out against the defendant after the plaintiff has produced his evidence and the suit may be dismissed. Thus the difference between the two cases is that while in the case of the plaintiff if an appeal is filed under Order XLIII, Rule 1(f), it will be an appeal against the dismissal order, but in the case of a defendant it will not be an appeal against the ex parte decree that may be passed against him but it will be against the order striking out his defence and placing him in a position as if he had not defended. The proceeding after the passing of the order under Rule 21 against the defendant is a subsequent proceeding and whatever is done as a result of those proceedings is not governed by the provisions of Order XLIII, Rule 1, What happened in this case, was that after the defence was struck out a date was fixed for ex parte hearing and the suit was decreed ex parte on the 17th of July, 1963 after the evidence was taken ex parte on the 16th of July, 1963. The ex parte decree, therefore, was not passed under Order XI, Rule 21 but was passed because of the default of the defendants. Order IX, Rule 13, therefore, clearly applied to the case. The order dated the 17th of July, 1963, therefore, can be set aside if the conditions of that Order under which an ex parte decree can be set aside are satisfied. I agree with rny learned brother that those conditions have been satisfied. I need not enter into the details of the facts which have led him to conclude that the ex parte decree ought to have been set aside.

(3.) AS to whether it was a case of an adjourned hearing and whether Order XVII, Rule 3 of the Code of Civil Procedure applied to the case or not I have nothing to add to what my learned brother has pointed 3ut and I am of opinion that those provisions do not apply.