SARUPSINGH MANGAT SINGH Vs. NILKANT BHASKAR SURATKAR

JUDGEMENT

(1.) THIS is an appeal from an order of TENDOLKAR, J. , who refused to set aside an ex parte decree passed against the defendant. The decree was passed in a running down action. The suit was field on 14th October, 1947, and the summons was served upon the defendant by substituted service on 6th December, 1947. Messrs. Mulla and Mulla filed their appearance on behalf of the defendant, but no written statement was filed and the suit appeared before the learned Judge for hearing on 27th June, 1951, and as the defendant was absent, an ex parte decree was passed. A motion was taken out by the defendant on 26th July, 1951, to set aside this ex parte decree, and as mentioned before the learned Judge dismissed the motion.

(2.) NOW, dealing first with the narrow question as to whether there was any sufficient cause for the non-appearance of the defendant on 27th June, 1951, we entirely agree with the view taken by the learned Judge below that there was not sufficient cause. Although Messrs. Mulla and Mulla were on the record, no written statement was filed and no proceedings were taken in the action by the defendant. Messrs. Mulla and Mulla were not even instructed to apply for an adjournment on 27th June, 1951. The defendant was suggested that he was a displaced person, that he had to go from India to Pakistan from time to time in order to liquidate certain of his properties, and that thereafter he was in Nandurbar plying a motor lorry. But, as the learned Judge has pointed out, all this did not prevent him from keeping in touch with the suit of which he had notice and with regard to which he had actually instructed solicitors who were to act for him in that suit. The position might have been different if the defendant was unrepresented, but as he was represented, the failure on the part of the defendant to give proper instructions to his solicitors cannot possibly constitute a sufficient cause for his absence on 27th June, 1951.

(3.) BUT a more important and more interesting question has been raised by Mr. Maneckshaw. In this case an insurance company by the name of the Unique Motor and General Insurance Co. , is concerned. The Motor Vehicles Act casts a liability upon an insurance company which insures a motor vehicle and issues a certificate of insurance to the owner of the motor vehicles. The liability is cast under Section 96 (1) of the Motor Vehicles Act and the liability is that the insurer shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. Now, before this liability can be imposed upon the insurance company a condition precedent has got to be satisfied, and that condition precedent is referred to in sub-section (2) of Section 96, and the condition precedent is :