BACHUBAI JHIRAD Vs. IBRAHIM ISAK MOTIVALA

JUDGEMENT

(1.) This is an application in revision which involves a very important question of practice. The facts are that the plaintiff brought a suit in the Court of the First Class Subordinate Judge of Thana to eject the defendant. The defendant had instructed a pleader Mr. Patil. When the suit came on for hearing on the 7 July 1921, Mr. Patil was absent, but he had asked another pleader Mr. Karkhanis to attend to the case for him. Mr. Karkhanis asked for an adjournment as he had no instructions, but this was refused and the hearing proceeded ex parte. Although Mr. Karkhanis did not take any part in cross-examining the plaintiff's witnesses when the Judge having heard the evidence was prepared to pass a decree against the defendant, it does appear that Mr. Karkhanis addressed the Court on the question how much time Was to be granted to the defendant for giving up the premises.

(2.) Thereafter an application was made to restore the suit to the board. The application was made by Mr. Karkhanis who did not file a fresh Vakalatnama but signed the application as "for Mr. Patil". The learned Judge treated the application as one to set aside the ex parte decree ; and it does not appear that he considered that the suit had been heard and disposed of under Order XVII, Rule 3. But he considered that the application to set aside an ex parte decree was a distinctly separate proceeding, so that even Mr. Patil could not have made the application without a fresh Vakalatnama. Accordingly Mr. Karkhanis could not make the application for Mr. Patil. The result was that the application was dismissed without being heard on the merits.

(3.) An appeal against the order was filed before the District Judge. A question arose whether an appeal lay to that Court or to the High Court on the ground that the original case in which the application was made to the First Class Subordinate Judge was a special jurisdiction case. We do not think it necessary to consider that question at present, as we are now dealing in revision with the order of the District Judge dismissing the appeal. The learned District Judge said: Now an application to set aside a decree is not like an application to execute the decree, but is an entirely new proceeding, outside that of the suit. This is the natural view of the case, and is supported by the authorities cited by the learned Subordinate Judge, especially page 158 of the High Court Manual of Civil Circulars, where it is expressly stated that an application to set aside an ex parts decree is to be included in the proceedings which do not form part of the suit.