SEWA RAM Vs. MISRIMAL

JUDGEMENT

(1.) THIS is a revision by Sewa Ram against an order of the District Judge of Pali.

(2.) THE facts, which have led to this revision, are these. A suit had been filed by Misrimal and others against the applicant. It was fixed for hearing on the 29th of July, 1950. On that date, the applicant was absent, and an order was passed that the suit should proceed 'ex parte', and the written statement of the applicant should be struck off. When the matter came up again for hearing on the 23rd of August, 1950, the applicant appeared, and it was contended on his behalf that the 'ex parte' order was only for that day, viz. , the 29th of July, 1950, and that the applicant could appear in the suit thereafter without having the 'ex parte' order set aside. THE learned District Judge, however, held that the applicant should not appear in the suit so long as the 'ex parte' order stood, and that he had to apply for setting aside the 'ex parte' order of the 29th of July, 1950. Eventually, the District Judge set aside the 'ex parte' order, and permitted the applicant to appear in the suit on payment of Rs. 100/- as costs. THE order striking off the written statement was also set aside.

(3.) WE now turn to examine the leading Madras case. If we may with great respect, say so, there does not appear to be any justification for the cardinal principle which had been made the basis of his decision by Wallace J. , namely, that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing. WE feel that the party can only come and appear according to the provisions of the Code of Civil procedure. If the party could appear otherwise, it would mean that any party could walk out of Court at any stage and walk in again to take part at a later stage. This, in our opinion, is bound to cause inconvenience and delay, and may sometimes result in injustice to the other side. For example, a case is ordered to proceed 'ex parte', and fixed for 'ex parte' evidence on the nest hearing. As is usual, when cases are to be heard 'ex parte', the plaintiff brings one or two witnesses to prove his case. He is then suddenly confronted by the fact that the defendant has put in appearance, and wants to take part from that date. The plaintiff is thus driven to the necessity of asking for an adjournment, for it is a different matter altogether to prove a case when the other side is there to defend it. If he is lucky enough to secure the adjournment without costs, there would at any rate, be delay, for which he cannot be compensated. But if it so happens that the adjournment is refused, and he is forced to rely on one or two witnesses, whom he has brought, while the defendant comes prepared with all his evidence, the plaintiff may lose his case for no fault of his. There could not, therefore, in our opinion, be such a cardinal principle which has been assumed by Wallace J. in 'venkatasubbiah's case', AIR (12) 1925 Mad 1274.