MANGAL SINGH Vs. SAGAR MAL

JUDGEMENT

(1.) THIS matter has come before this Bench on a reference by a learned single Judge. He has not formulated the question to be answered by the Bench, We shall, therefore, briefly given the circumstances in which the reference has been made, and then formulate the question arising therefrom.

(2.) A suit was brought by the plaintiffs who are opposite parties in this revision against three defendants, one of whom was Mangal Singh. Summonses were issued a number of times as there was difficulty in service. One of the dates fixed was 16th of July 1951. Summons was issued to Mangal Singh defendant who is the applicant in this revision for that date. The process server reported that Mangal Singh had refused to accept the summons. Therefore, the court passed an order on the 16th of July, 1951, that there was sufficient service on Mangal Singh and that the proceedings should go on ex parte against him. After further adjournment, the case came to be fixed for the 8th of October, 1952. On this date, Mangal Singh appeared and filed an application supported by an affidavit under O. 9, r. 7 C. P. C, for setting aside the ex parte order. The matter was enquired into, and on the 30th of January, 1950, the trial court passed an order dismissing the application under O. 9, r. 7. The present revision application is against this order.

(3.) THE question then arises whether in such an appeal from the decree, the defendant can dispute the correctness of the ex parte order on the grounds mentioned in O. IX, r. 13 when he has not made an application under that Order. This matter has been considered by various High Courts, and it has been held that if no proceedings are taken under O. IX, r. 13, there is nothing to prevent the defendant, who files an appeal against the ex parte decree, to challenge the correctness of the order on the grounds mentioned in O. IX, r. 13 C. P. C. THE principle in Maharajah Moheshur Singh's case (3) has been extended to cover this case also even though the proceeding under O. IX, r. 13 in not an interlocutory proceeding, and comes into existence only after the decree has been passed. THE reasoning seems to be that if it was the intention of the legislature to bar such a point being raised when no action was taken under O. IX, r. 13 a provision similar to sub-sec. (2) of sec. 105 C. P. G. would have been made in the Code with reference to O. IX, r. 13 proceedings. In this connection we may refer to (a) Jethalal Girdhar vs. Varajlal Bhaishankar (9), (b) B. Devai Sahib vs. Ammeenammal (10), (c) Janendra Mohan Bhadury vs. Profullananda Goswami (11 ). Though these were cases of refusal of adjournment on insufficient grounds, the principle was laid down that even if no proceedings were taken under O. IX, r. 13, it is open to challenge the order granting adjournment in the appeal from the decree finally passed. Further in Ramlal Gope vs. Kali Prasad Sahu (12),the following observations were made - "it is open to a defendant to prefer an appeal against the ex parte decree as also to make an application under O. IX, r. 13, and then to come up in appeal under O. 43, r. 1, (d ). If he follows the special procedure of O. IX, he will have an opportunity of placing before the court materials as to why he was precluded from being present when the case was tried ex parte. On the other hand, if he proceeds straight in an appeal against the original ex parte decree, he will be at some disadvantage because the court of appeal will not be in possession of the materials which prevented his appearance, If, however, the defendant can show that there is an error, defector irregularity, in an order rejecting his application for time which affects the decision of the case, there is no reason why he will not succeed even if he does not adopt the special procedure for the restoration of the suit and comes up in second appeal so long as he can bring the case within the purview of sec. 100. " THE High Courts seem, therefore, to take the view that even if no proceedings are taken under O. IX, r. 13, the ex parte decree can be challenged on the grounds mentioned in O. IX, r. 13 from an appeal from the decree itself. In such a case, the defendant may be at a disadvantage but that is a risk which he takes himself. If the decision in Berisal Singh's case (2) is understood in this sense namely that the party cannot ask for a remand in order to bring the materials on the record, and can only urge the points arising under O. IX, r. 13 on the materials already on the record, it must be taken to be correct. But if it lays down further that the party cannot, even on the materials on the record, raise the points arising under O. IX, r. 13, and ask for a decision of the appellate court simply because it has not taken proceedings under O. IX, r. 13, the decision would appear to that extent to be incorrect. THE conclusion, therefore, at which we arrive is this - Where an application under O. IX, r. 7 is dismissed and an ex parte decision follows, the defendant has two remedies open to him. He may apply under O. IX, r. 13 in which case he will have a right of appeal, and can come in revision to this Court. If he follows that, it stands to reason that he cannot subsequently be heard on the same point in the appeal from the decree itself. But if instead of following the remedy provided in O. IX, r. 13 he chooses to come straight in appeal from the ex parte decree, he cannot in view of sec. 105 (1) G. P. G. be precluded from challenging the correctness of the ex parte decree on any ground including the grounds covered by O. IX, r. 13, provided that he asks the court to decide on the materials already on the record, and that he is not entitled to ask for a remand to allow him to put more materials on the record to substantiate the grounds which he could have raised under O. IX, r. 13. But it follows from this that a ground can be raised under sec. 105 challenging the correctness of the order under O. IX, r. 7 in the appeal that might finally come to this Court from the ex parte decree, that may follow the rejection of an application under O. IX, r. 7. Our answer, therefore, to the question formulated by us' is - Where an application under O. IX, r. 7 C. P. C. has been dismissed, it is open to the defendant to take a ground under sec. 135 C. P. G. in the appeal which would finally come to the High Court from the decree passed in the suit, and therefore, a revision from an order dismissing an application under O. IX, r. 7 C. P. C. does not lie in view of the decision in Purohit Swarup Narain's case. Let this answer be returned to the Bench concerned. .