SHIDRAMAPPA IRAPPA SHIVANAGI Vs. BASALINGAPPA KUSHAPPA KUMBHAR

JUDGEMENT

(1.) 1. The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits.

(2.) THE facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on September 8, 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. THEreupon he withdrew from the case stating that his client had not turned up and he had no instructions. THE plaintiffs' pleader then led his evidence and the Court passed a decree in their favour. THEreafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected.

(3.) THE general provisions about appearances of parties in Order III, Rule 1, are that a party can appear in person or by a recognized agent or by a pleader appearing, applying or acting on his behalf. THEse are made subject to any other express provision of law. Such an express provision is in Order V, Rule 1, where the mode of appearance by a defendant is stated to be either (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. THE forms of summons given in forms Nos. 1 and 2 of appx. B to the first schedule also contain the same instructions. Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom ha can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the case, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refuses to take part in the trial on the ground that he has no instructions and then withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree. THE defendant would then be at liberty to apply to set it aside under Order IX, Rule 13. If he proves to the Court's satisfaction that he was prevented by sufficient cause from appearing i.e. either personally or by a duly" instructed pleader, it would be set aside on such terms as the Court thinks fit. Instead of applying to the same Court for setting aside the decree, he may also appeal against the decree under Section 96, Sub-section (2), on the ground, among others, that he had sufficient cause for non-appearance', and that the trial Court ought to have granted an adjournment. THE right of applying to set aside an ex parte decree to the same Court is presumably given on the ground that the suit could be proceeded with more expeditiously if that Court sets aside the ex parte decree on an application made soon after it was passed than if the appellate Court remands the suit on the same ground after a long time. It is for that reason that the Legislature seems to have provided the same procedure for default of appearance after hearing had commenced under Order XVII, Rule 2, as would apply to default either before or at the first hearing under Order IX.