S N BANERJEE Vs. HUSEYN SHAHIED SUHRAWARDY

JUDGEMENT

(1.) This is an appeal from a judgment of Buckland, J. whereby he refused to restore a suit which was decreed ex parte. It appears that a newspaper of which defendant 1 was the editor and the present appellant defendant 2 was the printer published an article on 27 July 1926 referring to the plaintiff. The plaintiff says that the article is defamatory and, on 8 November 1926, ha brought a suit for damages against the editor and the printer. On 6 December, summons was served upon the printer. It appears so have been established that the summons was not served upon the editor. The printer says that he handed over the summons to be attended to by the manager of the newspaper but that owing to the fact that the summons was not served on the editor or owing to some independent negligence, the manager took no steps, though he had promised to do so, to have the suit defended on the part of the printer. It is necessary that it should be understood what happened upon this default. Under the rules of the original side, a person served with a summons is required to enter an appearance in the office of the Court. That is an act which does not require his personal attendance and it does not involve his appearing before the Court himself with or without his witnesses. If he does not enter appearance within the. time limited, the case will go into what is called the undefended list; and, when the case is on the undefended list, it is not possible for the defendant, without obtaining leave, to eater appearance. He has a limited right to cross- examine witnesses adduced on behalf of the plaintiff if he appears at the time when the undefended case is down for hearing; but Ads position is that of a man who for not entering appearance in time is precluded from defending the suit, whether he appears at the hearing or does not appear at the hearing. A similar form of procedure is applicable to a cause where a person has entered appearance but has made default in the filing of his written statement and again in the case of a person who has failed to obtain leave to defend in a suit on a negotiable instrument under Order 37, Civil P.C. In the present case, no appearance was entered. The suit came on the undefended list on 3 January 1927 and the minute shows what took place before the Court on that occasion. Learned Counsel Mr. J.B. Sen, when the plaintiff had given his evidence in part appeared and represented to the Court that the writ had not been served on defendant 1, the editor, and he asked that the case might stand over to enable defendant 1 to enter appearance. I should have explained that this case came on the undefended list on the footing that both these defendants had been served and both had made default in entering appearance It was being heard, therefore, against both as an undefended suit. Mr. Sen stated in reply to the Court that he had not yet been instructed on behalf of defendant 1. Whether this means that Mr. Sen by that time was instructed on behalf of the present appellant is not quite clear.

(2.) The Court refused Mr. Sen's application for time holding that he had no locus standi. That, of course, was quite correct. A person who is not allowed to enter appearance cannot employ an attorney or counsel to appear on his behalf except possibly for a limited purpose specially provided for. Under these circumstances, a decree for Rs. 7500 for damages was passed against both the defendants. Then the editor applied to have the decree set aside as against him and he succeeded in his application - ostensibly on the ground that the writ of summons was not served on him. The printer applied on 18 January 1927 to have the decree set aside so far as he was concerned and the learned Judge has refused that application holding that, as he was served on 6 December, the negligence of the manager - his failure to provide for the defence of the suit - was not a "sufficient cause" within the meaning of Order 9, Rule 13, Civil P.C. He has held further that this case is not one within the concluding proviso to that rule. On that, the printer brings this appeal.

(3.) It would appear from the judgment of Buckland, J. that the plaintiff said that he did not oppose the application of the editor to have the suit restored as against him because that he wanted him to have an opportunity of putting in a plea of justification. The position, therefore, is that the plaintiff, according to him, is anxious to fight out this question with the editor but desires that the judgment against the printer should stand in any event. I have some difficulty in seeing that this course is either reasonable or heroic and in my opinion, it is necessary for us to consider whether this Court is bound either to affirm that there is "sufficient cause" within the meaning of Order 9, Rule 13, Civil P.C. or to refuse to set aside the decree.