RAJA SINGH Vs. MANNA SINGH

JUDGEMENT

(1.) These are two applications for revision filed by the plaintiff. The essential facts are these. The suit, which had been instituted in March 1936, came up before the Court below on 1 December 1936, On that date an application was made on behalf of defendants 4 and 5 praying for adjournment on the ground that defendant Misri Singh was ill with smallpox. The adjournment was granted subject to the payment of Rs. 90 as costs of the plaintiff and 25 February 1937 was fixed for final hearing. The sum of Rs. 90 was paid. When the case came up on 25 February 1937 a joint application was made on behalf of the plaintiff and Misri Singh, defendant, stating that negotiations for a compromise between the parties were proceeding and asking for another date. The Court fixed 19 March 1937 for the filing of the deed of compromise. On 19 March 1937, both the parties appeared before the Court and stated that the negotiations for a compromise had fallen through and requested the Court to fix a date for the final hearing of the suit. The Court accordingly fixed 8 and 9 July 1937 for final hearing. On 8 July 1937 there was no presiding officer in the Court because the officer who had so far held charge had been transferred and the new officer had not yet arrived. The matter accordingly remained pending. When the new presiding officer had arrived the case was put up before him on 15 July 1937 and he ordered that 18 and 19 August 1937 be fixed for final hearing and this order was communicated to the parties. On 18 August 1937 the plaintiff appeared but neither the defendants nor their counsel appeared. The Court proceeded to examine such witnesses as the plaintiff produced and decreed the suit. Subsequently two applications for the setting aside of the decree, on the footing that it was an ex parte decree as contemplated in Order 9, Rule 13 of the Code, were made by two defendants within the time allowed by him. These applications have been granted by the Court below and the decree has been set aside subject to the payment by the defendants of the sum of Rs. 32 as costs to the plaintiff. The two applications for revision have been filed by the plaintiff against the order granting these applications.

(2.) The contention raised by the learned Counsel for the plaintiff-applicant is that the suit had been decreed in accordance with the provisions of Order 17, Rule 3 of the Code, that therefore there was no ex parte decree and no application under Order 9, Rule 13 lay, and that consequently the order passed by the Court below is without jurisdiction. It is pointed out by learned Counsel that the Court when decreeing the suit on 18 August 1937 remarked in its judgment that the suit was being decided under Order 17, Rule 3, Civil P.C. The Court below has however rightly pointed out that there never was any occasion for the application of the provisions of Order 17, Rule 3 when the case came up for final hearing on 18th August 1937. O.17, Rule 3 runs thus: Where any party to a suit to whom time has been granted fails, without reasonable excuse, to produce his evidence, or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act necessary to the further prosecution of the suit, for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits.

(3.) It is thus necessary that time should have been granted to a party to produce his evidence or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act necessary to the further prosecution of the suit, and that party should have failed without reasonable excuse to take the step for which time had been allowed. It seems to us clear from the facts stated above that the Court bad not granted time to the defendants for any of the purposes mentioned in this Rule, and it cannot therefore be said that the defendants had failed to take any step for which time had been allowed. Order 17, Rule 3 therefore never came into play. The mere fact that the Court remarked on 18 August 1937, when decreeing the suit in the absence of the defendants, that it was acting under Order 17, Rule 3 cannot make Order 17, Rule 3 applicable. That the Court was labouring under a misapprehension is clear from its remarks in its judgment dated 18 August 1937. Today the defendants absented though last time they took time to file a compromise. The suit is therefore decided today under Order 17, Rule 3, Civil P.C.