BHIORAJ JETHMAL Vs. JANARDHAN NAGORAO

JUDGEMENT

(1.) 1. This is an application to revise an order of the Additional Subordinate Judge, First Class, Amraoti, dismissing the applicant's application made under Order 9, Rule 13, Civil P. C. The applicant was defendant in the suit based on a promissory note. He admitted the execution of the promissory note, but pleaded repayment of Rupees 4,000. The burden being incumbent on him to substantiate his plea, he was called on to lead evidence. He summoned five witnesses of whom only two were present on 25th April 1931. For want of time the case was adjourned till 28th August 1931. On that day the defendant's witnesses were absent and warrants were ordered to be issued against the witnesses who had been served with summons, and the case was fixed for hearing on 26th September 1931. On that day neither the defendant nor the witnesses were present. Mr. Kale, pleader however entered formal appearance, for the defendant. The Court declared the defendant's case as closed on account of the defendant's default in appearance, in producing his witnesses and also in payment of the process fees, as ordered on the previous date. The Court delivered the judgment and passed a decree against the defendant on the same day. The defendant filed an application, later in the day, for setting aside the ex parte decree. He stated in the application that he had not paid the process fees as the witnesses had agreed to accompany him to the Court voluntarily. It is also mentioned that the witnesses were present in Court, but that there was delay in attending the Court on account of heavy rain. This application was dismissed by the trial Court on the ground that the judgment was pronounced under Order 17, Rule 3, Civil P. C., and that the application made for setting aside the decree passed in pursuance of it was not maintainable under Order 9, Rule 13, Civil P. C.

(2.) THE scope of Rules 2 and 3 of Order 17, Civil P. C., had been the subject of conflicting decisions until the question was considered by a Full Bench of the Madras High Court in Pichamma v. Sreeramulu AIR 1918 Mad 143. Under the circumstances resembling those in the present case the Full Bench held that the case fell within Order 17, Rule 2, and not Rule

(3.) THE appropriate course would be to treat the case as falling under Rule 2 so as to give the Court a discretion either to proceed under Order 9 or adjourn the case. In either case it is open to the party to appear in the Court and give proper explanation for his default in the performance of the act necessary for the progress of the suit. If the Court proceeds to dispose of the case under Rule 3 in the absence of the party, he would have only two courses open : either to move the Court by a review petition or prefer an appeal from the decree passed against him.. As remarked by Kumaraswami, J., in Pichamma v. Sreeramulu AIR 1918 Mad 143 (of 41 Mad.) "there can be no review if the Judge does not preside when the application is made." Nor cart the appellate Court consider the explanation by the defaulted party for the first time in appeal from the decree, since it is not its province to make an investigation occasioned by the explanation as the original Court would be expected to do. While considering this aspect of the matter Mukerji, J., gave an illustration which is almost identical with the facts of the present case, in these words : I will take an extreme case. Say a defendant obtained time to produce his witnesses; on the date fixed for hearing he did all he could to arrive at the Court in time, but there happened to be a railway accident whereby he and his witnesses were delayed. Where is he to prove the facts: Ram Adhin v. Ram Bharose?