T V DEVARAJA REDDIAR Vs. LIPTONS, LIMITED

JUDGEMENT

(1.) This is a civil revision petition to revise an order of the Chief Judge of the Presidency Small Cause Court at Madras. The necessary facts may be briefly stated. The respondents in this Court, Liptons, Limited, instituted this suit against two defendants, defendant 2 being described as one A. P. Devaraja Reddy, brother-in-law of defendant 1. For some reason defendant 1 seems to have been exonerated and, as defendant 2 in the suit was not properly served, there was apparently an order for service on him by substituted service and thereupon a decree was passed ex parte, against him. The decree was passed in or about December 1923, and an application seems to have been made about two years afterwards on, or about 22 December, 1925, on behalf of the plaintiffs for amending the decree by describing the judgment-debtor, the original defendant 2, as T. V. Devaraja Reddy instead of A.R. Devaraja Reddy; that is, a simple application for the amendment of the initials of the judgment-debtor in the decree passed by the Court. The petition for the amendment was supported by affidavits.

(2.) In answer to the application, of which apparently notice was ordered and served on the present petitioner, he appeared and filed an affidavit. In that affidavit he amongst other matters set out that he did not know of the suit, that he was not properly served with summons in the case, that he was not aware of the passing of the decree and that, therefore, the decree could not possibly be regarded as properly passed against him, and the position was taken up on his behalf that the decree must be regarded as a decree passed against some other person and not against him. The application for amendment was objected to on the ground that the original judgment-debtor was a person entirely different to the person there and then before the Court as respondent to this amendment petition and that the ordering of the amendment would have the effect of, by way of amendment, making a decree against some person who was not a defendant, who was hot properly served and who had no opportunity to defend the action. At this stage the learned Chief Judge of the Small Cause Court who had apparently all these facts before him came to two conclusions :(1) that the respondent before him had not been shown to have been properly served with the summons in the suit and that the decree appeared to have been passed without such service and that the defendant did not also know of the suit till the proceedings with which he was then concerned; and (2) that according to the plaintiffs the original defendant in the action against whom the decree passed was passed ex parte was the very identical person who was appearing as respondent to the amendment petition and that there was no substance in the contention that the original A.R. Devaraja Reddy was a person different to the T. V. Devaraja Reddy then appearing. He thereupon made an order vacating or setting aside the decree passed ex parte and allowing the amendment of the plaint.

(3.) It is true as contended for by the learned vakil for the petitioner, that there is no power in the Court to order the amendment of any pleadings subsequent to the passing of a decree in the suit. Assuming for the sake of argument that the person described as judgment-debtor in the decree was the same person as the one appearing as respondent in the amendment application, then the plaintiffs not having taken care to describe the defendant properly, must be confined to such remedies as they can get against the person described in the decree in the manner he was. If on that decree they could obtain any relief against this person as the judgment-debtor, they would of course be entitled to do so. But in the absence of any provision, because so far as the Small Cause Court is concerned there is no power of review granted, and this cannot be regarded as a case where there was merely a clerical mistake in the decree or any difference between the judgment and the decree, no such power could possibly have been exercised. That difficulty the learned Chief Justice seems to have been conscious of and be also no doubt further realized that if there was substance in the contentions of the defendant, it might be that the amendment of the decree would have the effect really of passing a decree against a person who had no notice of the suit or who had not had an opportunity afforded him of defending the action. No doubt it is also now admitted that the defendant did not apply for setting aside the decree passed in the case ex parte. One can easily understand the reason. He put himself in the position where he was really unable to do it, because his contention was that the A.R. Devaraja Reddy mentioned in the decree-was a person entirely different to himself and, therefore, he could not with any seemliness say that he was the real defendant and come and apply to have the ex-parte decree set aside. In those circumstances, and no doubt without a formal application by the defendant, the learned Judge has set aside the decree and the question is whether this Court on this petition should interfere with that order. All that the provisions in the Small. Cause Court procedure require for setting aside a decree ex parte at the instance of the defendant is an application for the, purpose setting out the necessary ground. The necessary grounds had been set out by the present petitioner in the affidavit filed by him to the effect that he did not know of the suit, that he was not properly served, that he did not know of the decree, and so on. On those facts the learned. Judge was clearly entitled, even though there was no formal written application before him, to set aside the decree passed ex parte, finding that on account of the defect in the description of the defendant there was no proper service of the summons on the defendant. Whatever might be thought of the view that at one time prevailed that the Court had an inherent, power to set aside such decrees, suo motu, without any reference to any application or bar of limitation, still when the materials were placed before the Judge, and he was satisfied that the facts were as stated above, and the learned Judge found that, having regard to the peculiar nature of the objection raised by the defendant, he had put himself out of Court so far as the petition for setting aside the ex-parte decree was concerned, he was entitled to treat the real substance of the objection to the decree passed ex parte and set aside the same. I have, therefore, come to the conclusion that on the materials before the learned Judge he was entitled to treat the objections taken on behalf of the petitioner as an application really setting aside the ex-parte decree and I have no doubt whatever that the learned Judge not only had power to do it, but that he exercised very properly the discretion vested in him.