DHAPAN Vs. ONKARMAL

JUDGEMENT

(1.) SHRI H. D. Ujjwal These are five revision applications against the order of the Additional Commissioner Jaipur dated 14. 5. 1951 by which he accepted second appeals filed before him against an order of the Collector Sikar in five rent suits.

(2.) THE petitioner Mst. Dhapan filed suits for recovery of her share of rent from defendants, Onkarmal Ramdeo, Nanu and Chatra. Onkar is her husband's brother and the remaining three are the cultivators of the land held by the plaintiff and the defendant No. 1 has their maufi land. ,mst. Dhapan alleged that she was getting her share of the land from Onkarmal but for sometime past he had stopped giving her the share. She therefore, prayed that a decree may be passed in her favour for grant of her share of the Hansil. THE defendants did not appear in the trial court of the Tehsildar, Dantaramgarh and the Tehsildar passed ex parte decrees in all the five suits against the defendants. Against these decrees, Onkarmal filed appeal in the court of the Collector, Sikar. THE grounds taken in appeal were that the defendant was ill and the summons was not served upon him and the decree was passed ex parte on the single statement of the plaintiff Mst. Dhapan. THE decree should, therefore, be set aside. THE Collector, Sikar held that the remedy for the appellant was to apply under Order 9, rule 13 for setting aside the ex parte decree, and not by way of appeal. He has quoted 1834 Oudh in page13 1924 Rangoon page 137, where it has been held that although a person against, whom an ex parte decree has been made is entitled to appeal against it instead of resorting to the procedure prescribed by Order 9 Rule 13 yet his contentions on appeal must be limited either to the question of the law or to such arguments as arise upon the record as it stood when the ex parte decree was passed. He is not entitled to ask the appellate court to accept the appeal on grounds which could be urged in an application under Order 9 Rule 13 and remand the suit for rehearing. THE Collector held that as no -question of law was raised before him nor any argument had been raised on the basis of the' materials on record how the decree could not stand, the remedy of the appellant, therefore, was to file an application under Order 9 Rule 13 for setting aside the ex parte decree and not an appeal. He, therefore, dismissed the appeals.