PRATHVI SINGH Vs. UMMAID SINGH

JUDGEMENT

(1.) APPEAL Nos. 12 and 13 of District Pali of 1955 arise out of a common set of circumstances which may briefly be stated thus. Shri Thakur Umaid Singh plaintiff brought a suit against seven defendants, Prathvi Singh, Mukan Singh, Sher Singh, Hir Singh, Sumer Singh, Rawat Singh and Anand Singh, in the court of the Assistant-Collector Jaitaran on 26-3-1950 for recovery of Rs. 691/14/- as arrears of rent. On 16-5-1951 as can be gathered from the order sheet the parties were present and the case was adjourned to 3-6-1951 for filing the written statements. As specified in the order itself the case was to be heard on that day at Bar. Unfortunately on the adjourned date the presiding officer could not attend the court due to indisposition and the Reader of the court wrote out the following order, "parties along with their councel present; the S. D. O. has not been able to attend the court as he is taken ill, the case of adjourned to 14-6-1951 and the defendants should file their written statements. " On 14 6-1951 the plaintiffs' counsel was present. The defendants were absent and so no written statement was filed on their behalf the plaintiff was asked to lead his ex parte evidence on 15-7-1951. On this date after recording the evidence of the plaintiff the suit was decreed ex parte against all the defendants on that day i. e. 25-7-1951. Two separate applications for setting aside the ex parte decree were filed, one by Anand Singh on 22-8-1951 and the other by Sumer Singh on 24-5-52. On behalf of Anand Singh it was pleaded that on 3-6-1951 the Reader informed him that the next date of hearing would be communicated to him subsequently. This was, however, not done, and hence he came to know of the proceedings taken out in the court. On behalf of Sumer Singh it was pleaded that summonses were not duly served upon them. The trial court held that Sumer Singh was duly served and that Anand Singh was duly informed on 3-6-1951, of the next date fixed in the case, and as such no sufficient ground existed for setting aside the ex parte decree. Both the applications were rejected. Separate appeals were filed before the Additional Commissioner by Sumer Singh and Anand Singh. The learned Commissioner agreed with the observations of the trial court and confirmed its decision, hence these appeals. APPEAL No. 13 has been filed by Sumer Singh, and appeal No. 12 has been fi!ed by Anand Singh and others. Both these appeals will be disposed of by this judgment.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. The question as to whether Sumer Singh was actually served upon or not in trial court is not of such significance, as it is apparent from the record that on 16-5-1951 all the parties of the case were present. The wordings of the order are clear enough to include Sumer Singh as well. There is nothing to suggest that Sumer Singh was not present on that date. The main question on which would depend the determination of these appeals relates to validity or otherwise of the proceedings carried out on 3 6-1951. It is an admitted fact that the appellant and their counsel were present on this date. The S. D. O. (Presiding Officer) did not attend the court and the Reader of the Court wrote out the adjournment order. It is perfectly clear that this action of the Reader was ultra vires and cannot be supported. It was observed in A. I. R. 1934 Lahore 984 (Hukum Chand vs. Mani Shivratdas that- "when a Judge is absent the clerk has no power to fix the adjournment date and failure to appear on a date so fixed does not justify a dismissal for default. " It was also observed therein that the absence of the party on such an unauthorised adjourned date would not amout to any negligence on his part. This decision was examined by the Rajasthan High Court in a civil revision No. 267 of 1952 decided on 15-7-1953 (1954 RLW 225 ). The facts of the case were distinguished by their Lordships of the Rajasthan High Court though the principle enunciated therein was quoted with approval. This question was examined by the Board in case No. l5/pali Svt. 2010 decided on 1-10-1954 to which one of us was also a party. It was held that the Reader having no authority to adjourn the date proceed-dings that took place on3-6-1951 were ultra vires and the defendants were under no obligation to appear on 14-6-1951. Reliance has been placed upon A. I. R. 1952 Madras 798 by the learned counsel for the respondants. This case is clearly distinguishable from the present one. Under Sec. 24 of the Madras Civil Courts Act ministerial officers of a court were authorised to perform such duties as may from time to time be imposed upon them by the presiding officer of the court. No such Rules exist in the present case. It may also be pointed out that in that case the petitioner was not present on the date when the presiding officer was unable to* attend the court and it was observed that - "it cannot be held* that there is any duty cast upon the court to inform him of the adjourned date when he has not conformed to the imperative duty of being present in court" It will follow therefrom that if the petitioner had been present on that day the court would have been held duly bound to inform him of adjourned date. For these reasons the decision cited by the learned counsel is not applicable to the present case. To our mind the position is that on 3-6-1951the defendants were present and when the presiding officer took the case on any date subsequent to it, was imperative for him to inform the parties it. The so called adjournment proceedings of 3-6-1951 can hardly have any validity in the eye of law. The defendants were, therefore, legally justified in omitting to attend the court on 14-6-1951 and the ex parte proceedings carried out against them cannot be upheld. WE would, therefore, allow these appeals, set aside the order of the lower court and direct that the applications presented by the defendants for setting aside the ex parte decree dated 25-7-1951 be allowed, the ex parte decree be set aside and case be remanded to the court of the first instance for being proceed with further in accordance with law. .