Patna High Court
Sheikh Abdul Rahman vs Shib Lal Sahu And Ors. on 18 July, 1921
Equivalent citations: 63IND. CAS.570, AIR 1922 PATNA 252
JUDGMENT Jwala Prasad, Acting C.J. 1. This appeal arises oat of an action to enforce a mortgage dated the 11th August 1914. The mortgage bond was executed by Shib Lal, defendant No. 1, and Mahabir, father of defendant No. 2, Ram Chandra, defendant No. 4, is the son of defendant No. 1. Defendant No. 3, Mahadeo Lal, is a subsequent purchaser of the equity of redemption in execution of a decree. Defendants Nos. 5, 6, 7 and 8 are 'members of his family. One member of the family Shibnath, son of Jagarnatb, defendant No. 6, is not on the record. The Courts below passed only a personal decree against the defendants Nos. 1 and 2. They dismissed the suit against Ram Chandra, son of defendant No. 1, on the ground that legal necessity for the loan or benefit to him was not proved. The suit has also been dismissed as against the subsequent purchaser, defendants second and third parties, Upon the ground that the order of the Court in the previous suit brought by the plaintiff, No. 892 of 1915, dated the 6th June 1916, operates as res judicata upon the points raised in the present case Another reason given by the Court below for refusing a mortgage decree is that Shibnath, grandson of the subsequent purchaser Mahadeo, is not on the record and consequently in his absence a mortgage-decree cannot be passed. On behalf of the appellant all these grounds upon which his claim for a mortgage-decree has been dismissed have been challenged. 2. As regards the view of the Court below as to there being no proof as to the benefit from the loan or family necessity, reference may be made to the allegations in the plaint that the mortgage in question was executed in 1914 to pay off a prior debt of the executed of the bond for which a suit had been already brought and whish was settled by compromise between the parties that a mortgage-bond be executed. That prior loan was certainly of a mash anterior date because the suit to recover the same was instituted in the year 1913. Dealing with the issue as to consideration for the bond the Trial Court held that the consideration was a hath chitta for which the previous suit in 1913 was brought. Therefore, upon the pleadings and upon the findings of the Trial Court it is obvious that the consideration of the mortgage-bond in question was an antecedent debt of the father and, therefore, there was no obligation on the part of the plaintiff to prove family necessity or benefit to the minor of Hoe loan. No doubt no argument was raised in the Court below as against the view of the Trial Court that the plaintiff was not entitled to a mortgage-decree inasmuch as the debt was not proved to have been beneficial to the family nor for family necessity, but the point does not require any consideration of evidence on the record. It is based entirely on the finding of the Trial Court and is a purely legal point and, therefore, it is open to the appellant to dispute the view taken by the Courts below and it is also competent to this Court to hold upon the pleadings and the findings of the Trial Court that the plaintiff is not required to show legal necessity for the loan or benefit to the sons of the executants. All the family members, besides the executants, are bound to pay the loan which was contracted to pay off the antecedent debts of the executants The view taken by the Court below on this point is overruled and the contention of the learned Vakil on behalf of the appellant, therefore, prevails. 3. The second ground of dismissal of the plaintiff's claim to have a mortgage-decree by the Court below appears also to be erroneous. No doubt, the plaintiff in a mortgage suit is bound to bring every person interested in the mortgage or in the equity of redemption upon the, record and in this respect the view taken in the case of Girwar Narain Mahton v. Makbulunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468 is right but when, upon the face of the record, it is obvious that there was sufficient representation of the members of the joint family although all are not on the record the plaintiff's suit cannot fail. In the present case the plaintiff impleaded not only Mahadeo Lal, in whose name the property appears to have been purchased, but also almost all the members of his family with a clear assertion that they were all members of a joint family. It was through inadvertence or on account of some accidental omission that the name of one of the members of the family, Shibnath, the grandson of Mahadeo Lal, was omitted. The defendants in their written statement did not disclose the name of that minor son of Jagarnath, who is said to have been omitted from the record nor was there any denial that Mahadeo Lal or Jagarnath, the father of the minor, did not properly represent the minor in the suit. There was, therefore, a proper representation of Shibnath in the present case. Again, the property was purchased in the name of Mahadeo and if be was competent to represent the entire family in the transaction of the purchase there is no reason why he should not be held to be competent to represent the other members in the present litigation in respect of the same property. This is in fall accordance with the view taken by this Court in the case of Jag Sah v. Ram Chandra Prasad 63 Ind. Cas. 564 : (1921) Pat. 289 : P.L.T. 553 decided on the 6th July last. The view taken by the Court below upon this point also is overruled. 4. There remains the crucial point in the case upon whish both parties have addressed us at great length. I have carefully considered the full and learned arguments on both sides and the rules in the Code of Civil Procedure on this point and the authorities cited at the Bar. These are: Balmakund Marwari v. Lachmi Narain Marwari 57 Ind. Cas. 748 : 2 U.P.L.B. Pat. 197, Naurang Ram Sahu v. Bhakhori Mandar 51 Ind. Cas. 189 : 1 P.L.T. 177 : P.L.J. 277, Valliammui Nadathi v. Asservada Nadar 53 Ind. Cas. 44, Firm of Har Chand Rai Nand Ram v. Raja Ram-Bahadur Singh 48 Ind. Cas. 192 : (1919) Pat. 32. 5. I need not enter into a detailed consideration of these authorities for in some of them I myself was a party to the judgment and I still adhere to the view taken by me in those cases. The order of the Court in the previous suit relied upon by the lower Appellate Court and the respondents in the present appeal is, as observed above, of the 6th June 1916 and reads as follows: Up to date the plaintiff has filed no talbana and no process fees as ordered. Today also plaintiff takes no steps. So I order the suit be distrusted for the plaintiffs default. 6. That suit was originally brought against the major defendants who had already appeared in the once and filed their written statement. On the 15th Marsh 1916 issues wore settled and the 4th May was fixed for disposal. Subsequently, on the 22nd March, the plaintiff applied to add new defendants some of whom were minors. He was accordingly ordered to file talbana and process-fees in order has the notices served upon the propped guardian of the minor defendants. This talbana and process-fee was not filed whish has been referred to in the order in question and whish accused the default of the plaintiff. Tiara is no: doubt, therefore, that the original defendants; had already entered appearance in the case and upon the findings of the Court below they were also present on the 6th Juno 1916 when the order of dismissal was passed. Therefore, the order of dismissal could not have been under Order IX, Rule 3, of the; Civil Procedure Code which is to be applied, only when neither party appears. The order must, therefore, have been under Order IX, Rule 9 inasmuch as the defendants had entered appearance and were also present upon the date when the suit was dismissed. The question then is, whether this is a valid order under Order IX, Sule 3 If it is a valid order under that rule then the present suit, is surely barred by Rule 9 which clearly lays down that the plaintiff, when his suit is dismissed under Rule 8, shall be precluded from bringing a fresh suit. Therefore, the contention of Mr. Lachmi Narain Singh that an order of dismissal for default is not a decree within the definition of the term in Section 2, Clause (2) of the Code does not seem to be of any effect. If, on the other hand, the order of the Court of 6th June does not some under Order IX, Rule 8, then the plaintiff's present suit cannot be barred by any provision in the Code and the order will be without any jurisdiction. Consequently, the principle of res judicata also will not apply inasmuch as the plaintiff was not bound to have such an order set aside either by appeal or by review or in any other way, Mush has been argued at the Bar as to the real meaning and scope of the word hearing" used in the different provisions of the Civil Procedure Code, bat a careful examination of the rules on the subject will leave no manner of doubt that) this is purely a question of academic interest. The word "hearing" has not been defined in the Code but it is obvious that it is used in the different rules with a view to state the different, purposes for whish a date for hearing of the suit is fixed. Now, in Order IX, Rule 1, read with Rule 3, it would appear that after the institution of the suit when the commons is issued upon the defendants sailing upon them to appear upon a particular date that date is the first hearing of the suit and if the parties fail to appear when the suit is sailed on for hearing on that date the plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final bearing, whish means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage, in order to enable or compel the parties to take necessary steps in the prosecution of the case, the Court may fix dates for some particular action to be taken. These dates are dates for the hearing of that particular matter whish is specified in the order of the Court, In the present case the plaintiff on a previous date wanted to summon his witnesses but this was put off till the final date for hearing, meaning the examination of witnesses was fixed. The same thing happened with the steps taken by the appearing defendants for the production of their evidence. No doubt, on the 16th Marsh the Court had fixed the 4th May for disposal, but in view of the application made by the plaintiff in the meantime on the 22nd Marsh the case could not be taken up for disposal on that date but an order was passed fixing a date for the appointment of a guardian for the proposed new defendants who were minors. The 6th June was specially fixed for that purpose and the hearing on the 6th June was for the appointment of a guardian of the minor defendants and it was not for the disposal of the case. The plaintiff did not take the necessary steps for the appointment of the guardian on that date and consequently there was a default on his part on the 6th June. That default of the plaintiff had to be dealt with under Rule 3 of Order XVII of the Code whish says that, "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for whish time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." The plaintiff having defaulted, the Court should have proceeded to decide the suit forthwith, in order to do that in the present case it was incumbent upon the Court to fix a date for the disposal of the suit inasmuch as the parties, and particularly the plaintiff who suffered by the order of the Court of the 6th June, did not know that the case would be taken up for hearing as soon as there was a default in his not taking the necessary steps for the appointment of a guardian. The Court in the Order Sheet does not even intimate that the case was to be taken up for disposal forthwith as is required by Rule 3. The case could not, therefore, be disposed of on that date in the way the Court did, viz., by dismissing the entire suit. The plaintiff was entitled to have his case decided as against the appearing defendants upon a chance being given to him to adduce his evidence whish was postponed on account of the Court's order that this should be put off till the final date for hearing was fixed. In this view, the, order of the Court of the 6th June appears to me to be without any jurisdiction and if that was so there was no valid decree whish could operate as res judicata so as to bar the present suit of the plaintiff based upon the mortgage-bond in Question. The result is, that the view of the Court below refusing to give a mortgage-decree on the ground that the order of the 6th June operates as res judicata is set aside, I hold that the plaintiff is entitled to a mortgage-decree against all the defendants and the subsequent purchaser, Mahadeo Lal, and the family members are certainly bound to pay off the prior incumbrance of the plaintiff. The result is that the decision of the lower Appellate Court is set aside and in lieu thereof it is ordered that a mortgage-decree in terms of the bond be prepared carrying interest as stipulated in the bond up to the day of grace which is fixed as six months from this date and thereafter interest will run at the rate of 6 per sent per annum till the date of realisation. If the sum due under the mortgage, calculated as above, is not paid on or before the days of grace the plaintiff will be entitled to sell the property, The appeal is decreed with costs throughout. Das, J.
7. I agree.