JETHALAL GIRDHAR Vs. VARAJLAL BHAISHANKAR

JUDGEMENT

(1.) The plaintiff filed this suit in the Court of the First Class Subordinate Judge of Ahmedabad, claiming certain relief from the defendants with regard to a deposit receipt for Rs. 10,000 of which he claimed to be the owner. The case came on for hearing on the 5 of February 1918. The pleader for the defendants Nos. 1 to 3 presented an application to the Judge for an adjournment on the ground that the first defendant had gone to Bombay as his son was affected by plague and as he fell ill there, he could not come. That application was refused and the Court proceeded, after hearing the plaintiff's evidence, to pass a decree on the 16th February 1918 in favour of the plaintiff". The result was that the case was heard ex parte without hearing the evidence of the defendants although their pleader was present.

(2.) The defendants then had three remedies: they might have applied to the trial Judge to set aside the ex parte decree under Order IX, Rule 13; they might have applied for a review; or they could appeal under Section 96. They chose to appeal. One of the grounds of appeal was that the lower Court should have granted the adjournment asked for and not proceeded with the hearing of the case. The learned appellate Judge was of opinion that the first defendant should have been granted an adjournment since sufficient reason for his absence on the 5th February was shown and that if an application had been made under Order IX, Rule 13, the Court might have set aside the decree, especially as defendants Nos. 2 and 3 were minors. He considered that if the defendants, without making any such application to the trial Court, appealed against the decree as it stood and asked the appellate Court to set aside the decree and direct a re-hearing on the ground that the trial Court was wrong in proceeding to decide the suit ex parts, the appellate Court could not accede to that application. He relied on a decision of this Court in Parvatishanhar Durgashankar V/s. Bai Naval (1892) I.L.R. 17 Bom. 733. The defendant had applied for an adjournment on the ground that she was ill and had not been able to file her written statement. The Court granted a month's adjournment. On the appointed day the defendant applied for a further adjournment which the Court rejected and proceeded to hear the r case passing a decree for the plaintiff . The defendant appealed and the District Judge reversing the decree remanded the case for trial, on the ground that the defendant's application for adjournment ought to have been granted. On appeal it was held, discharging the order of remand, that the suit having been tried ob the merits and not on a preliminary point, the District Judge could not remand the case under Section 562, but ought, to have proceeded under Secs.538 and 569 of Act XIV of 1862. That decision was dissented from by the High Court of Madras in Krishna Ayyar V/s. Kuppan Ayyangar (1906) I.L.R. 30 Mad. 54, F.B. The Full Bench there decided that the appellate Court can remand a ease when it reverses an order refusing to set aside an ex parte decree. It seemed to the learned Chief Justice anomalous to hold that there was no such power when the appellate Court allowed an appeal against a decree upon the ground that there ought not to have been an ex parte decree against the defendant.

(3.) In Hummi V/s. Aziz-ud-din (1916) I.L.R. 39 All. 143 the defendants against whom an ex parte decree had been passed first filed an application for re-hearing which was rejected. Then they appealed against the decree to the District Judge who dismissed the appeal. In second appeal it was held that the defendants might and should have appealed against the rejection by the Munsiff of their application for a re-hearing: but they had no right in their appeal from the decree to raise any question, as to their non-appearance in the Court of first instance. It may be that the fact that the defendants had in the first instance applied for a rehearing influenced the Court in coming to the conclusion it did. The learned District Judge was of opinion that in appeal against the ex parte decision under Section 96, Civil Procedure Code, the appellate Court could not deal with the question whether the lower Court was right in proceeding ex parte. The only ground on which the decree could be challenged in appeal was that the evidence which the plaintiff had adduced was not sufficient to justify the decree. It seems to me that the question really in this case has been unduly narrowed by considering that the appellate Court had power to remand the case only if it came within Order XLI, Rule 23. If there was no power to remand unless the lower Court had disposed of the suit upon a preliminary point, then undoubtedly the appellate Court could not have any power to set aside the decree of the lower Court and direct a re-trial because in the opinion of the appellate Court the lower Court was wrong in refusing the adjournment. It appears to me that would be taking a narrow view indeed of the powers of an appellate Court. However limited such powers were by the Code of 1882, there are certain new sections in the Code of 1908 which enable the Judges to take a wider view of their powers and prevent them from being restricted not particular powers granted by particular sections. Order XLI, wala 38, gives an appellate Court power to pass any decree and make in any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. Section 151 of the Civil P. C. gives the Court power to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the Court. This question with regard to the power of remand of an appellate Court was dealt with in Ghuznavi V/s. The Allahabad Bank, Ld (1917) I.L.R. 34 Cal. 929, F.B. It was held that the power of remand under Section 107 of the Civil Procedure Code was limited to the case described in Order XLI, Rule 23, but nothing in that section restricted in any manner the application of the principle of inherent power recognized by Section 151 of the Code. The learned Chief Justice at page 989 gays:-" I am of opinion, therefore, that the powers of the appellate Court as regards remand are not limited to the specific case mentioned in Order XLI, Rule 23, and that the Court, under its inherent jurisdiction, may order a remand to do what is right and necessary in cases other than those covered by that order in" justice so requires it."