TEJ RAM Vs. CHANAN DEVI

JUDGEMENT

(1.) Tej Ram plaintiff-petitioner filed a suit in May, 1972 for a declaration to the effect that he is the owner in possession of the house in question and for cancellation of the gift-deed dated February 25, 1967, which had been executed by himself in favour of his wife, defendant No. 1, and had been duly registered. On the basis of title acquired by the said gift, defendant No. 1, the wife of the plaintiff, had mortgaged the property in favour of defendant No. 2, Smt. Krishna Wanti. On February 12, 1976, defendant No. 2 was not present in the trial Court and since her counsel had no instructions for that day, he made a statement to that effect whereupon he was allowed to withdraw from the proceedings and the suit was allowed to proceed ex parte against the second defendant. Thereafter, final arguments in the case were heard and the suit was adjourned to February 13, 1976, for pronouncement of the judgment. Before that date, however, the learned Senior Subordinate Judge forwarded the case to the District Judge, Amritsar, for its being transferred to some other Court. The District Judge actually transferred the suit to the Court of Shri H.L. Garg, Subordinate Judge First Class, Amritsar. The transferee Court received the suit on February 25, 1976. On the same date, counsel for the defendant made an application under his own signature for setting aside the ex parte proceedings against his client and for being permitted to take part in the proceedings. Details of the sufficient cause pleaded for the non-appearance of the second defendant in the previous Court on February 12, 1976, were given in paragraph 2 of the application.

(2.) Notice of the application having been given to the plaintiff-petitioner, he objected to the maintainability of the application on two grounds, namely (1) that the application was not signed by the party and there was no Wakalat Nama in favour of the counsel who had signed the application which was not even accompanied by an affidavit, and (2) that the proceedings in the case had come to an end with the fixing of a date for the pronouncement of judgment and the defendant against whom the judgment was going to be ex parte had no right to join the proceedings at that stage. Both those objections were repelled by the order of the trial Court dated May 29, 1976. Not satisfied with the same, the plaintiff has come up to this Court in revision under Section 115 of the Code for having the order reversed.

(3.) Mr. Muneshwar Puri, the learned counsel for the plaintiff petitioner, has referred to the judgment of their Lordships of the Supreme Court in Arjun Singh v. Mohindra Kumar and others, 1964 AIR(SC) 993 in support of his submission that the second defendant cannot be allowed to take part in the proceedings at this stage. It was held by the Supreme Court in Arjun Singh's case that if the entirety of the 'hearing' of the suit had been completed and the Court 'being' competent to pronounce the judgment then and there', adjourns the suit merely for the purpose of pronouncing judgment under Order 20, Rule 1, of the Code, there is clearly no adjournment of 'the hearing' of the suit, for there is nothing more to be heard; in the suit. There is no quarrel with the proposition of law laid down by the Supreme Court, but the counsel would have been perfectly right to refer to this judgment if the suit had remained in the Court which had heard the arguments and not transferred it to some other Court. It goes without saying that if the transferee Court had pronounced the judgment on the basis of the arguments heard by the previous Court, that judgment would have been set aside straightaway on the ground that a judicial or quasi-judicial order passed by a person other than the one who had heard the parties (where hearing is necessary) is invalid. Since the Court of Mr. Garg has yet to hear the arguments in the case before he can pronounce judgment, defendant No. 2 is entitled to join the proceedings as of right and to address arguments under Order 9, Rule 7, of the Code, even without seeking leave of the Court. If, however, he wants to have the order dated February 12, 1976, set aside, so as to take part in the proceedings which took place on that date and at any time thereafter before the commencement of the arguments, he will have to convince the lower Court about sufficient cause of his non-appearance on February 12, 1976.