GOBIND SINGH Vs. KALYAN DASS

JUDGEMENT

(1.) These are two applications in revision. No 62 is an application to revise au order of the District Judge of Agra, dated the 20th December 1915. No. 63 is an application to revise an order of the Subordinate Judge of Agra of the 24th of July 1915. The matter arose in this way. The applicant lives outside the jurisdiction of the Agra Court and is employed in some capacity in a Native State. On the 11th of January 1915 (to go no further back), a summons was issued to him to attend the trial of a suit which was brought against him by the respondent to this application. The summons reached him on the 6th of February. By the summons it appeared that the date fixed for the hearing was the 8th. On the 8th of February the summons was endorsed by a Judge in the Native State. The 7th happened to be a Sunday, but it was obviously impossible under any circumstances for the defendant to prepare for a trial on the 8th for which be received a summons on the 6th, and any Court ought to have held, whatever the rule upon the subject, that the notice given was unreasonable and that the defendant was entitled to an adjournment When the trial come on on the 8th it was obvious to the Court that the summons had not been returned. The matter, therefore, came within the express provisions of Order IX, Rule 6, Sub-section (1)(c), and the duty of the Court, under these circumstances, was to fix a future date and direct notice to be given to the defendant. We are deciding nothing as to the length of notice required under the rules in such a case, and if there is a rule applicable, the notice ought to comply with it. If there is no rule it ought to be a reasonable notice. The Court fixed the case for the 4th of March. There were two objections to a hearing on the 4th of March., In the first place having regard to the fact that within 28 days from issue of the original summons it had not been returned, it might have occurred to the Court that to fix another 28 days was a somewhat risky proceeding, the probability being that the defendant would not receive that notice in time, but a second and absolutely fatal objection is that no notice of any kind was sent. On the 4th of, March the so-called trial took place. The defendant, of course, was not present, and in the course of a long argument nobody has been able to suggest that he had ever heard of the 4th of March as a date in which he was interested at all. The case was heard in his absence and judgment was given against him. In our opinion, that was an irregular proceeding and without jurisdiction. The next step was that the present applicant became an applicant in the Court of Agra thereby, be it observed, submitting to the jurisdiction, because, in our opinion, he might have ignored the decree. But he became an applicant for the re-hearing of the case and he filed an affidavit. On the 17th of May an order was made for his attendance for cross-examination on his affidavit. The 12th of June was the date fixed for the hearing of his application. It is a little difficult to say-, and possibly we have not all the materials before us, why that order for attendance was passed upon him. The suit is with regard to title to land, and so far as the defendant, an alleged mortgagee, is concerned, there have been no dealings with it since the year 1886, and what light this gentleman can throw upon the title, it is a little difficult to see. However, that order was made within the jurisdiction of the Court upon a person who had submitted to the jurisdiction of the Court, and it would appear to us at present, prima facie at any rate, that unless he got it set aside, he had to obey it; at any rate he would disobey it at his own risk. He did the next best thing. He employed a Pleader to appear for him. We now come to the most lamentable incident in the whole history of the case. On the 12th of June, the Pleader not appearing when the case was called on the application was dismissed, and so far as matters stood at that time, the decree became final. It is alleged that the Pleader arrived shortly afterwards. How that may be we do not know, but on the 24th of July the present applicant proved to the satisfaction of the first Court that the Pleader s absence was due to an accident, namely, the condition of the road to the Court over which the Pleader had no control. We are quite unable to understand why the application for restoration of the application of the 12th of June, having been proved to the satisfaction of the Court to have been rendered necessary by an accident of that kind, was not granted. In our opinion that was a wrong exercise of judicial discretion. It is the duty of a Court to re-admit, on such terms as it may consider just, any application which has missed fire, so to speak, by some accident for which the parties are not responsible. The only possible persons to suffer by the granting of such an application are the opposite side, and they can be recompensed by being re-imbursed for any expenditure thrown away by the accident. In our view, therefore, so far as this is an application to revise the refusal of the Subordinate Judge to restore the application to have the ex parte decree set aside, it ought clearly to be granted on the ground that it was improperly refused.

(2.) The matter, however, does not rest there. The applicant being, not unnaturally, somewhat dissatisfied at this unfortunate series of accidents, appealed from the order of the 24th of July. The learned District Judge held that he had no jurisdiction to entertain such an appeal. We do not think it necessary to decide whether that is right or wrong. There is one matter which seems worthy of comment in the learned Judge s judgment. The District Judge said that the applicant had himself to blame as he might have appealed against the order of the 12th of June. In our view, where there has been the accident of the kind such as occurred in this case, it is not necessary to appeal, and it is only accumulating appeals and piling up costs to hold that it is necessary to appeal. To say that whenever a Judge strikes out a case because the Pleader is absent, it is necessary to come up to this Court and wait for eighteen months before you get relief, it seems to us to be going too far. An application may be made to the Court itself. So far as the immediate relief asked for by this application is concerned, we might stop there and send this case back for the application to set aside the ex parte decree to be re-heard. We do not think that it is really material, but it does happen that the two Judges who have at one stage or another become acquainted with this case are no longer there and, therefore, the matter would come before a fresh mind in any event.

(3.) But in our view, if it is possible for us to do so, it is clearly in the interests of justice and of the parties themselves that the ex parte decree, which is shown conclusively by the record to have been irregular, should be set aside without delay and no further time lost in ascertaining the rights of the parties. In our view we have power to make such an order, either under Section 15.1 as to which, speaking for myself, I have already said in Udhishter Singh v. Kansilla 34 Ind. Cas. 79 : 38 A. 398 all that I desire to say on th6 point, or under our inherent jurisdiction. In his notes to the preamble to the Act Sir John Woodroffe, in his book on the Code, quotes a large number of illustrations and decided cases where a similar course has been taken. "The Code binds the Court", he says summing up judicial decisions, "only so far as it goes. If it prescribes a particular course in a particular case that course must be taken. If, on the other hand, it contains an express prohibition, the latter must be given effect to." "The Court has in many cases acted upon the assumption of the possession of an inherent power to do that -justice for the administration of which it alone exists." The Court has an inherent power to reverse an order made in the absence of the opposite party without service of notice upon him." If this statement of the decided cases is correct, it is a well settled practice in this country that the moment an Appellate Court is satisfied by evidence that there is some technical defect in the procedure in the Court below, the existence of which obstructs the decision of the case and the removal of which will enable justice to be administered, the Appellate Court, provided it has all the materials before it and it is properly seized of the subject- matter, can make any subsidiary order, consequential upon the order which it is asked to make in the application, necessary for the administration of justice. The only real question in this case between the parties is to whom does this property belong. The respondent has a judgment in his favour. He may be right in spite of that, but the question has never been tried and it ought to be tried, and we, therefore, make the further order and set aside the ex parte decree obtained on the 4th of March, and direct that the original suit be restored to the file of pending cases in the Court of the Subordinate Judge of Agra and tried according to law after due notice of the fixed date given to the defendant in accordance with the Code.