ENATULLA BASUNIA Vs. JIBAN MOHAN ROY

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Rungpore rejecting an application to set aside a decree said to have been passed ex parte. The application was made under Order IX, Rule 13 of the Code of Civil Procedure. The decree sought to be set aside was passed under these circumstances. On the day the hearing of the case commenced both the parties appeared. The case then proceeded from day to day. The plaintiff in the course of 9 days examined 14 witnesses, who were cross-examined by the defendants pleader, and then closed his case. The defence pleader then began his case and examined one of the defendants whose cross-examination, not having been finished on the third day of his examination, stood adjourned to the next day when neither he, the witness, nor the pleader for the defence appeared. The Subordinate Judge consequently noted the case for the defence as closed and proceeded to hear the argument of the pleader for the plaintiff. There was no argument for the defendants, and the Subordinate Judge delivered his judgment decreeing the suit in plaintiff s favour.

(2.) The defendants made the application, out of which this appeal has arisen, for setting aside the decree alleging that it had been passed ex parte. The Subordinate Judge, relying on the case of Kader Khan v. Juggeswar Prasad Singh (1908) I.L.R. 35 Calc. 1023 held that he had no power to set aside the decree under Rule 13 of Order IX, and that the defendants remedy lay in a review or an appeal.

(3.) In this appeal it has been argued for the appellant that the decree was passed ex parte. The expression ex parte has not been defined anywhere in the Code nor does it appear to have been the subject of a judicial decision for its definition. Its accepted meaning, however, according to Wharton s Law Lexicon seems to be "a proceeding by one party in the absence of the other." We may remark here that this accepted meaning does not help us in this case one way or the other. Rule 6 of Order IX lays down that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then if it is proved that the summons was duly served, the Court may proceed ex parte. For correctly applying this rule it is important to consider what constitutes "appearance" of the defendant. The nature of the defendant s appearance in obedience to the summons is best explained by the language of the form, prescribed in the first schedule Appendix B, for summons to a defendant. That form directs the defendant to appear in person or by pleader duly instructed and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions. The defendant s failure to appear in either of the ways specified would lead to the determination of the suit in his absence. The test of a defendant s "appearance" is whether such of the requirements of the summons as relate to appearance have or have not been fulfilled. In the present case the defendants appeared by their pleader whose being furnished with due instruction cannot be doubted as he conducted the case for the defence up to the stage when he failed to attend the hearing of the case. Thus it cannot be said that the Subordinate Judge proceeded under Rule 6 of Order IX.