A H GHAZNAVI Vs. SARDAR GURCHARAN SINGH

JUDGEMENT

(1.) This is an application in revision against an appellate order of the District Judge dated 26 April 1935 confirming an order of the Civil Judge dated 18th February 1933 refusing to set aside an ex parte decree dated 20 August 1931. It is contended before us on behalf of the applicants that the Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction in not setting aside the ex parte decree inasmuch as the applicants were prevented by sufficient cause from appearing when the suit was called on for hearing on 20th August 1931. Courts below have considered the excuse offered by the applicants for their absence on 20 August 1931, and they have come to the conclusion that there was no sufficient cause for their absence, The question whether a litigant was prevented by sufficient cause from appearing when the suit was called on for hearing is essentially a question of fact, and this Court cannot interfere in its revisional jurisdiction when the Courts below have come to the conclusion that the litigants were themselves to blame for not appearing before the Court.

(2.) On the materials in the shape of affidavits placed before the trial Court, the con. elusion at which that Court arrived was that if the applicants were pre- occupied with other business and could not attend Court, an intimation ought to have been given in time to counsel to apply for adjournment and that there was nothing from which one could say that information regarding the date fixed for hearing was not received by counsel or by the parties in proper time. An affidavit however has been filed before us, and even if we were inclined to admit additional evidence in revision, all that we can say is that up to about 13 August 1931 both the defendants came to know that the date fixed for the hearing of the case was 20 August 1931 and within that week the defendants ought either to have appeared in person and filed their written statements or should have given full instructions to counsel in the matter. It is impossible for us in revision to say that the Courts below were in error even on a question of law, much less that they usurped jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of their jurisdiction.

(3.) It should also be borne in mind that out of the various remedies which an aggrieved party has when an ex parte decree has been passed against him, the applicants in the present case adopted the remedy open to them under Order 9, Rule 13, Civil P.C., and that being so, they must comply with the conditions laid down in that Order. It was held by a Pull Bench of the Madras High Court in Gadi Neelaveni V/s. Narayana Reddi A.I.R. 1920 Mad. 640, that a Court has no power, apart from the provisions of Order 9, Rule 13, Civil P.C., to set aside an ex parte decree passed by itself. The same view was taken by this Court in Kallu V/s. Nadir Bakhsh A.I.R. 1922 All. 441, where Walsh and Wallach, JJ. observed: The only justification for an order setting aside an ax parte decree is the provision contained in Order 9, Rule 13, Civil P.C., under which the applicant must satisfy the Court that the summons was not duly served or that he was prevented by sufficient cause from appearing. If neither of these conditions occur, the Court has no jurisdiction to pass an order setting aside the ex parte decree.