PRATIVADI BHAYANKARAM PICHAMMA ALIAS MANGAMMA Vs. KAMISETTI SREERAMULU

JUDGEMENT

(1.) I am of opinion that Chandramathi Ammal v. Narayanasami Aiyar (1909) I.L.R. 33 M. 241 to which I was a party was rightly decided. As the question is very fully dealt in the opinion of my learned brother, I shall merely state the conclusions at which I have arrived on further consideration. Under the Code, where the plaintiff appears and the defendant does not appear either on the day fixed for the first hearing [Order IX, Rule 6(1)] or on any day to which the hearing of the suit is adjourned [Order XVII, Rule 2 read with Order IX. Rule 6(1)], the Court, if it is proved that the summons was duly served, may proceed ex parte. In either case, where the Court has disposed of the case ex parte and passed a decree against the absent defendant, he may, under Order IX, Rule 13, move to set aside the decree on the ground that he was prevented by any sufficient cause from appearing when the suit was called on. When a case is called on and the defendant is absent, and the Court resolves to proceed against him ex parte, there is nothing, I am now of opinion, to prevent the Court from applying the provisions of Order XVII, Rule 3 and disposing of the suit notwithstanding the defendant s failure to do what he had been granted time to do, but that disposal will be none the less both in fact and in law ex parte, and the decree will be liable to be set aside by the defendant under Order IX Rule 13. If the ex parte decree is set aside and the case restored and the defendant appears, it will still be open to the Court to apply the provisions of Order XVII, Rule 3 after hearing what the defendant has to say in explanation of his failure to do what he had been given time to do. There is I think no conflict at all between the two rules, and each may be fully applied on this construction at the proper stage of the case. In so far as we laid down in Chandramathi Ammal v. Narayanasami Aiyar (1909) I.L.R. 33 M. 241, that the two rules must be read as mutually exclusive, I think we went too far.

(2.) With great respect I am unable to agree with any of the rulings or observations in the cases cited that take a different view. Sadasiva Aiyar, J.

(3.) I have nothing to add to the judgment which my learned brother Kumaraswami Sastri, J., is about to pronounce and I entirely concur in it. Kumaraswami Sastri, J.