JNANENDRA MOHAN BHADHURY Vs. PROFULLANANDA GOSWAMI

JUDGEMENT

(1.) This appeal is directed against an order passed by the Second Subordinate Judge of Hoogbly on 5 and 28 May 1925. By this order the learned Subordinate Judge allowed an appeal that had been preferred to his Court by a defendant in a suit which had been decreed ex parte and after setting aside the judgment and decree of the trial Court remanded the suit for further trial upon certain terms and conditions. The plaintiffs have now preferred this appeal. It appears that after several adjournments granted to the defendant on applications made by him for that purpose and upon the condition that he would pay the costs of those dates the case was eventually fixed for 26 February 1924. On that day the plaintiffs were ready but the defendant again put in an application asking for an adjournment on the ground that he had been attacked with pox and that, therefore, he was unable to appear in Court on that day. An order or adjournment was made on condition that the defendant would pay adjournment costs, Rs. 15; but on the said costs not being paid the case was taken up, certain witness as for the plaintiffs were examined and the learned Munsif decreed the suit ex parts on the evidence that was before him. From this decree an appeal was preferred on behalf of the defendant and in this appeal the learned Subordinate Judge, being of opinion that on 26th February 1924 the defendant was prevented by sufficient cause from appearing in Court inasmuch as he had been attacked with pox and in that view holding that the adjournment asked for on behalf of the defendant should have been granted, passed the order to which I have referred. The plaintiffs, as I have already stated, have thereupon preferred the present appeal to this Court.

(2.) In support of this appeal two grounds have bean urged on behalf of the appellants. The first ground is to the effect that on an appeal preferred from the ex-parte decree that was pissed in this case the Subordinate Judge was not entitled to go into the question as to whether the defendant was prevented by sufficient cause from appearing in Court on the day the case was taken up. His argument in substance is that this is a matter which properly comes within the purview of proceedings taken under Order 9, Rule 13, Civil P.C., and inasmuch as the defendant did not resort to that remedy it was not open to him to urge at the hearing of the appeal that he had preferred, that he was prevented by sufficient cause from appearing when the suit was entitled on for hearing and that, therefore, the learned Subordinate Judge was wrong in pissing the order that he did in the present case. In support of this contention reliance has been placed on behalf of the appellants upon a passage which is to be found in the case of Jonardan Dobey V/s. Ram Dhone Singh [1896] 23 Cal. 738 (F.B.). That passage occurs in the order of reference made by Banerjee and Rampini, JJ., referring certain questions for consideration to a Full Bench of this Court and the passage runs in these words: Upon the record, as it stands, the ex-parte decree may be wholly unassailable, but, if the defendant has an opportunity (winch he was prevented from having owing to some sufficient cause) of placing on the record evidence which he could have adduced to substantiate his defence, no such decree should have been passed. The remedy in such a case cannot be by way of appeal which must ordinarily proceed upon the record as it stands. The proper remedy must be the one provided by Section 108, Civil P.C.

(3.) In my opinion, the passage relied upon by the learned vakil on behalf of the appellants is obiter. Apart from authorities it seems to me to be perfectly clear that when a suit has been decided ex parte the remedy by way of appeal from the ex-parte decree as well as the remedy by way of application under Order 9, Rule 13, are both open to the persons against whom the decision was passed. It is true that if he avails of the remedy by way of application under Order 9, Rule 13 he is in a position of greater advantage than he would be if he preferred an appeal from the ex-parte decree itself. This would be by reason of the fact that he would be able to establish by adducing evidence that he was unable to appear owing to circumstances over which he had no control, whereas if he prefers an appeal from the ex-parte decree itself the Court would have to proceed upon the record as it stands and to determine upon the materials that are on the record whether the application for adjournment was rightly granted or not. The question as to whether the order refusing the application for adjournment was rightly passed or not is, in my opinion, somewhat different from the question as to whether the absenting party was prevented by sufficient cause from not appearing in the course of the proceedings. The two n doubt are inter related but the considerations are not quite the same. Reliance-has in the next place been placed upon. the decision of the Allahabad High Court in the case of Hummi V/s. Azizuddin [1917] 39 All. 143. The decision taken as a whole no double does support the contention which then appellants have put forward but the facts of that case are entirely different from those of the present case, one distinguishing feature being that in that case an application under Order 9, Rule 13, to set aside the ex-parte decree and to have a rehearing was as a matter of fact dismissed and it was after that the question again arose at the hearing of the appeal. A decision of the Burma High Court has also been referred to, namely, the case of Raj Chandra Dhar V/s. K.D. O.C. Ray A.I.R. 1924 Rang. 13. Now, with the utmost respect for the learned Judges who decided the case in Hummi V/s. Azizuddin [1917] 39 All. 143 and the ease in Raj Chandra Dhar V/s. K.D.O.C. Ray A.I.R. 1924 Rang. 13, I must say that if they intended to lay down as a broad proposition that in a ease in which an ex-parte decree has been passed and the aggrieved (party has not availed of the remedy by way of an application under Order 9, Rule 13, he is precluded from raising the question of propriety of the refusal to adjourn his case in the appeal which he prefers from the ex-parte decree itself, I am unable to agree in the view which the learned Judges had taken in the case. There is a decision of the Madras High Court in the case of Sadhu Krishna Ayyar V/s. Kuppan Ayyangar [1907] 30 Mad. 54, where the contrary view has been taken. There is, therefore, in my opinion, no substance in the first contention that has been urged on behalf of the appellants.