RAMESH CHANDRA GUHA BAHADUR Vs. DINESH CHANDRA GUHA

JUDGEMENT

(1.) This Rule is directed against an order of the Subordinate Judge of Dacoa, dated the 6th February 1925, by which the learned Subordinate Judge held that the application by the petitioners under Order 9, Rule 13, Civil Procedure Code, could not be maintained. The facts are that a suit for accounts and declaration of title was instituted and subsequently referred to the arbitration of three arbitrators. The arbitrators submitted their award to which the defendants took several objections. On the date of hearing the petitioners applied for time for summoning their witnesses which was refused. Thereafter the Court pronounced judgment in accordance with the award. Subsequently the petitioners filed an application under Order 9, Rule 13, which has been rejected on the ground that it is not maintainable. Two objections have been taken against this order. In the first place it is argued that the order of the Court below is wrong inasmuch as the order decreeing the suit was an order passed under Order 17, Rule 2, and therefore an application under Order 9, Rule 13, would lie. With reference to this objection it appears from an examination of the record that an application was made on behalf of the petitioner for summoning his witnesses. The learned Subordinate Judge passed the following order: " The defendant No. 1 has filed a petition for summons to his witnesses. Heard pleader for defendant No. 1, petition will be considered in judgment," In the judgment that was passed, the learned Judge " stated as follows: The objections were filed by the defendant on 28 February 1924 in suit No. 274 of 1922. Since then he has been allowed sufficient time to bring his witnesses and adduce evidence. On a perusal of his objections I find that they are very vague. At this stage the defendants filed a petition for time to bring witnesses. I reject this application on the ground that it is made to harass the opposite party. I, therefore, affirm the award in both cases." The decree that was drawn up in pursuance of the judgment mentioned the names of the several pleaders for the defendant in whose presence it was passed. There is nothing in the record to show that the pleader who applied for time had no further instructions to appear and so the decree was ex parte. A decree on the face of it inter parties cannot be treated as ex parte. The decree does not purport to be ex parte; the present application does not accordingly lie.

(2.) Besides it cannot be said that it is an order passed under Order 17, Rule 3. That rule provides that if a party is allowed time to produce his witnesses and fails to do so, the Court will proceed to decide the suit forthwith. It is argued that this rule applies only to cases where there are materials before the Court upon which to decide the suit. In this case it cannot be said that there were no materials before the Court as the award was before the Court and on it a decision could be passed. Moreover the rule says that if the party does not appear the Court will proceed to decide the suit. It is open to question it refers to interlocutory proceedings such as one under Order 9, Rule 13. In this view we think that the order of the Court below is correct.

(3.) The second objection taken is that on the application under Order 9, Rule 13, the Court passed the order that it should be considered after taking the evidence of the parties. It is contended that the successor of the Judge who passed the order was not entitled to override the order of his predecessor. It appears that the application under Order 9, Rule 13 was made before Mr. Biswas. The only objection taken at that stage was that it did not disclose sufficient grounds under Order 9, Rule 13. A supplementary affidavit was filed by the petitioner and the Judge accepted it as curing the defect, but it is not decided by that order whether Order 9, Rule 13 applies to the case at all. We therefore think that his successor was not precluded from going into the propriety of the application.