SHANKER DASS Vs. HANS RAJ

JUDGEMENT

(1.) THIS revision is directed against concurrent judgment of the courts below refusing to set aside an ex parte decree.

(2.) THE facts are these: - The respondent -plaintiff brought a suit for ejectment and arrears of rent against the appellant -defendant in the Court of Munsiff, R. S. Pora. The defendant was summoned and appeared in the Court on 14 -11 -1971 accompanied by his counsel who took time to file the written statement. The written statement was not, however, filed on several subsequent hearings up to 20 -1 -1972 when the counsel for the defendant reported "no instructions". As such the Court took ex parte proceedings against the defendant. Thereafter the case was adjourned for recording ex parte evidence, first to 9 -2 -1972 and then to 24 -2 -1972 and eventually an ex parte decree was passed against the defendant on

(3.) -3 -1972. On 29 -3 -1972 the defendant filed an application under O. 9 R. 13 C. P. C. for setting aside the ex parte decree alleging that on account of the declaration of emergency reference apparently being to the emergency declared in December, 1971 due to the outbreak of hostilities between India and Pakistan - he had gone to the Punjab State where he was taken ill and could not move about for 2/3 months, he could not be present in the Court during the relevant time and could be able to know about the ex parte decree only a few days before the application when he returned to his village. The plaintiff contested the application. On consideration of the evidence the trial Court came to the conclusion that the defendant was in his village from 16 -2 -1972 to 12 -3 -1972 and, even after, working on a Government Drug Farm and that his allegation about ailment was false and made up and dismissed the application holding that no sufficient cause was made out for non -appearance by the defendant. The Court did not, however, return any clear finding as regards the allegation that defendant had gone over to Punjab earlier. By an identical prescription the learned Subordinate Judge (C. J. M.) Jammu dismissed the appeal filed before him. Hence this revision. 3. Order 9 Rule 13 reads: In any case "in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to Set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also." The question is whether in a case, like the present, where the defendant appears and then absents himself not only on one date but on several successive dates, to which the hearing is adjourned, resulting first in the case being set ex parte and then an ex parte decree being passed against him, the requirements of this rule would be satisfied entitling the defendant to an order to set aside the ex parte decree, if he shows sufficient cause for his non -appearance on the date when the ex parte proceedings were first taken against, him and assigns no such cause for his non -appearance on the subsequent dates, to which the hearing was adjourned, until the ex parte decree was passed. The learned counsel for the petitioner says; yes. In fact that is the sheet -anchor of his arguments in the present case. He has even tried to support this view by a decision of the Lahore High Court in Krishan Lal Malhotra v. Madan Lal (AIR 1950 Lahore 43). I will come to this decision later. Here it is enough to say that the view advanced by the learned counsel is not a correct view of the law as set out in O. 9 R. 13. On the language of O. 9 R. 13 a defendant is entitled to an order to set aside an ex parte decree if he satisfies the Court "that he was prevented by any sufficient cause from appearing when the suit was called on for hearing". The expression hearing has reference to the hearing which takes place in the absence of the defendant leading up to the passing of the ex parte decree. Such hearing may be concluded in one day or be spread over a number of days to which the case is adjourned from time to time by the Court to complete the hearing. Where, therefore, the hearing is extended over a number of days, to which the case is adjourned from time to time until the ex parte decree is passed, the defendant must, on the terms of this rule, explain his absence to the satisfaction of the Court Again it may be stated that the legal effect of the setting aside of an ex parte decree is that the parties are relegated to the stage, at which the case stood, when the defendant absented himself. It is, therefore, reasonable to hold that the defendant should explain his absence right from that stage up to the passing of the decree before the decree may be set aside. It is true that the defendant has a right to participate in proceedings, even after ex parte proceedings are taken against him without the previous proceedings being interfered with, but that is so only so long as the proceedings do not end in an ex parte decree. Once an ex parte decree is passed, the intermediate proceedings" get tied up at both ends with ex parte order at the one end and the ex parte decree at the other, leaving no room for them to get loosened unless the whole chain is broken as a corollary it follows a defendant must be able to break the whole chain or in other words show sufficient cause for his absence from the beginning to the end before he may be entitled to claim that the ex parte decree be set aside. Viewed from any angle, the legal position therefore is that, in an application under O. 9 R. 13 C. P. C., the defendant must not only establish sufficient cause for his non -appearance on the date, when ex parte proceedings were first taken, but he must also establish such cause for his non -appearance on the subsequent dates, to which the case is adjourned for hearing, till the ex parte decree was passed, before he may be declared entitled to an order to set aside the decree. Let me now deal with the decision in Krishan Lal v. Madan Lal (AIR 1950 Lah. 43) cited by the learned counsel for the petitioner. The facts of this case were these : On 4th June, 1947, Madan Lal instituted a suit for damages and for the recovery of rent against Krishan Lal and others in the Court of Sub -Judge, Lahore. The defendants filed the written statement and the plaintiff was directed to file replication. The case was fixed for this purpose on 8th October, 1947. On that date the defendants were not present in the Court nor also their counsel. Ex parte proceedings were ordered to be taken and the case was adjourned for evidence from time to time until it was transferred under some administrative orders to another Court at Lahore. The Court, to which the case was transferred, recorded the evidence ex parte without informing the defendant of the transfer and eventually also passed an ex parte decree on 11 -2 -1948. On 28 -2 -1948 the defendant, Krishan Lal, filed an application under O. 9 R. 13 for setting aside the ex parte decree. The trial Court found that the petitioner had no sufficient cause for absence on 8 -10 -1947 and dismissed the application. On appeal the Lahore High Court set aside the ex parte decree and the proceedings taken against the defendant since transfer, relying on a Rule of the Court which provided for notice regarding transfer being given to the parties, where a case was transferred by an administrative order from one Court to another. The ratio decidendi was that no notice was given to the defendant after transfer, as required by the High Court Rules, and not that he had justifiable cause for non -appearance from an intermediary stage, though, as a fact, it was found that there was sufficient cause for the subsequent non -appearance of the defendant. This is what was made clear by the Court observing: "There is nothing in the Code of Civil Procedure to prohibit a defendant against whom a case is proceeding ex parte, to join at any hearing of the case and start from that stage. This is, however, quite different from saying that after the case is finished and has resulted in a decree, a defendant can insist on the reopening of the proceedings from the intermediary stage for which he had established "sufficient cause" for his absence. This would lead to useless complications and a case may never end." The Court, however, added: "Where ex parte proceedings have commenced in a proper manner and culminated in an ex parte decree, the defendant must show sufficient cause for his non -appearance on the date when the ex parte proceedings were first taken." and observed at the end that the above was the general rule. It is on the latter observations that emphasis was laid by the learned counsel for the petitioner to support his contention that, in order to entitle a defendant to an order to set aside an ex parte decree, he need only establish sufficient cause for his absence on the day when ex parte proceedings were first taken against him. Taken alone, these observations may perhaps convey that sense but they cannot be torn out of their context in the preceding observations, which when read with these observations, unmistakably suggest that the defendant must prove sufficient cause for his absence both at the beginning, when the case was set ex parte against him, as also at the subsequent stage, when the hearing was completed and an ex parte decree was passed. This is, as the Court put it, the general rule. In any case if the judgment were construed as lying down that then defendant need only show sufficient cause for his non -appearance on the date, when the ex parte proceedings were first taken, to entitle him to an order for setting aside the ex parte decree, I would respectfully record my dissent from it on the basis of the observations made earlier in this judgment regarding the correct position of the law based on O. 9 R. 13 C. P. C. In these circumstances, even if it were assumed, as the learned counsel for the petitioner put it, that on the facts found by the lower Courts the defendant had established sufficient cause for his non -appearance on the date, when ex parte proceedings were first taken against him, it cannot be held that he has established sufficient cause for his absence in terms required under O. 9 R. 13 when no such cause was admittedly established by him for his absence at the later stage of the proceedings culminating in the passing of the ex parte decree.