Patna High Court
Ram Lal Gope And Ors. vs Kali Prasad Sahu And Ors. on 14 May, 1929
Equivalent citations: 120IND. CAS.304, AIR 1929 PATNA 609
JUDGMENT Chatterji, J.
1. This appeal arises out of a mortgage suit brought on the foot of a mortgage said to have been executed by defendant 1st party in favour of the plaintiffs for paying rent to the Malik and also for some other family necessity. The claim was for Rs. 151 as principal and Rs. 635 as interest with six monthly rests. The plaintiff is in possession of the mortgaged property by virtue of an earlier sudbharna bond executed by the defendants in favour of one Ram Prasad Bhagat who assigned the same to the plaintiffs. The defence amongst other things, is that there was no passing of consideration under the deed in question and that the defendants 1st party were not liable for payment of rent, because the liability attached to the plaintiffs as sub dharnadars in possession.
2. There was a reference to arbitration but it was returned unexecuted by the arbitrators. Then there was another reference to arbitration but it appears that the vakalatnama did not empower the Pleaders to make a reference to arbitration and, therefore, the parties were directed to file a proper vakalatnama on the 13th of August, 1926. On the lath of August, the defendants applied for time to file vakalatnama but the Court did tot apparently grant time and rejected the petition filed by the parties for referring the suit to arbitration and adjourned it to 21st September, 1926, for disposal. The 21st September, 1926, was, however, a holiday and the suit was taken up on the 22nd when the defendant 1st party applied for time on the ground that his witnesses who had come on the preceding day had gone to Baidyanath Dham. The Court rejected that petition as also the petition of defendants 2nd party (subsequently transferee) and decreed the suit ex parte after the defendants' Pleaders retired from the suit stating that they had no instructions. The defendants 1st party preferred an appeal to the District Judge who dismissed it as against respondents Nos. 5 to 8 for failure to prove service of notice oh them and transferred the appeal to the file of the Second Subordinate Judge for disposal. The learned Subordinate Judge stated that respondent No. 8 had appeared and the appeal could not have been dismissed under Order XLI, Rule 18 against him, but the order regarding respondents Nos 5 to 7 held good. In this view he held that the appeal having been dismissed against some of the plaintiffs-respondents it could not be heard against any of the respondents. Further he held that the defendants-appellants should have taken warrant of arrest against their witnesses if they thought they would go away after attending the Court on a holiday. In the result, he dismissed the appeal.
3. It is urged by the learned Advocate for the appellants that Order XLI, Rule l8 had no application and that the learned District Judge had no jurisdiction to dismiss the appeal as against respondents Nos. 5 to 8. Order XLI, Rule 18 empowers the Court to dismiss an appeal where notice to the respondent has not been served in consequence of the appellant's failure to deposit costs. The order sheet shows that there was no such failure on the part of the appellant but it was considered that the appellant was required to file identifier's evidence and on a consideration of this failure the appeal appears to have been dismissed. Therefore, the case does not come within the purview of this rule nor does it come under Order XLI, Rule 17 which deals with the dismissal of appeal for appellant's default in appearance. It is however, contended on behalf of the respondent that the appellant should have applied for restoration of the appeal under Order XLI, Rule 19 and cannot agitate this matter in a second appeal. Now, Order XLI, Rule 19 is applicable where an appeal is dismissed for appellant's default in appearance under Rule 11 and Sub-rule 2, of Rule 17 or when the appeal is dismissed in consequence of appellants failure to deposit costs under Rule 18, but none of these conditions exist in the present case and so it cannot be said that it was the bounden duty of the appellants to make an application under Order XLI, Rule 19. Whatever that may be, they are in my opinion entitled under Section 105 of the Code of Civil Procedure to raise this point as a ground of objection in the memorandum of appeal if there is an error, defect or irregularity in the order affecting the decision of the case.
4. A perusal of the service report shows that notice was served on the respondents NOS. 5 to 8 on the identification of the serving peon himself. There was no identifier. The peon did swear to an affidavit as to the service. The Court was, therefore, in error in directing the appellants to file an affidavit in proof of service of notice and in ultimately dismissing the appeal as against these respondents for failure to file such an affidavit. This error or irregularity has effected the decision of the case, because the lower Appellate Court has dismissed the appeal in its entirety on the ground that it has already been dismissed against some of the respondents. The High Court is competent in second appeal to enter into the question of a substantial error or defect in procedure which may possibly have produced error or defect in the decision of the case upon its merits. It is apparent from what has been said above that this matter can be considered in an appeal against the final decree of the Appellate Court. I hold that the learned District Judge was not justified in dismissing the appeal as against respondents Nos. 5 to 8 and consequently the Appellate Court was in error in holding that the appeal was incompetent.
5. It is next urged by the learned Advocate for the appellant that the trial Court was wrong in taking up the case on a date not fixed for hearing and in passing an ex parte decree on such a date after rejecting the defendant's application for time. It is contended by the other side that this is a matter which cannot be considered in an appeal against the decree, on the alleged ground that this should be confined to the merits of the case, and in support of this contention reference is made to Raj Chandra Dhar v. K.D.O.C. Ray 79 Ind. Cas. 506 : 2 R. 108 : 2 Bur.L.J. 282 : A.I.R. 1924 Rang. 137 which follows Jonardhan Dobey v. Ramdone Singh 23 C. 738 at p. 743 and Hummi v. Aziz-ud-din 36 Ind. Cas. 277 : 39 A. 143 : 14 A.L.J. 1226 and dissents from the decision of the Full Bench of the Madras High Court in Sadhu Krishna Ayyar v. Kuppan Ayyangar 30 M. 54 : 1 M.L.T. 268 : 16 M.L.J. 479. The view expressed in the case of Raj Chandra Dhar v. K. D.O.C. Ray 79 Ind. Cas. 506 : 2 R. 108 : 2 Bur.L.J. 282 : A.I.R. 1924 Rang. 137 is that in an appeal from an ex parte decree the only question with which the Appellate Court is ordinarily concerned is whether the evidence on the record is sufficient to support that decree and that the question of due service of the summons is the subject-matter not of an appeal from the decree but of a special proceeding under Order IX of the Civil Procedure Code. I agree that the question of due service of summons may not be the subject-matter of an appeal from the decree but should be the subject-matter of a proceeding under Order IX of the Civil Procedure Code and then of an appeal under Order XLIII, Rule 1, but if the ruling be taken as embodying that an Appellate Court cannot under any circumstances go beyond the consideration of the question whether the evidence is sufficient to support the decree I beg to differ from it. As a matter of fact I do not think that the decision lays down any such broad and general proposition as is contended on behalf of the respondents. The use of the word "ordinarily" makes the position clear.
6. In the Calcutta case of Jonardhan Dobey v. Ramdone Singh 23 C. 738 at p. 743 the point under consideration was whether Section 108 of the Code of Civil Procedure of 1882 did not apply if a suit was decreed ex parte by reason of the defendant's non-appearance at an adjourned date. In discussing that question the Judges referring the matter to the Full Bench thought that a remedy by appeal against the original decree would not entitle a defendant to show why he was unable to appear on an adjourned date and observed that "such a remedy can be efficacious only in those cases, and their number must be small, in which the ex parte decree is either wrong in law on the face of the proceeding, or is based upon evidence so weak that even though unrebutted it is insufficient to sustain the decree."
7. This is an observation by way of obiter dictum and the point whether the Court could go into the question of an improper refusal of an application for time did not come up for consideration specifically in that case. Even then their Lordships(4) concede that it is possible in appeal to show that an. ex parte decree is wrong on the face of the proceeding. In the case of Hummi v. Aziz-ud-Din 36 Ind. Cas. 277 : 39 A. 143 : 14 A.L.J. 1226 the defendant did not appear on an adjourned date for hearing and the Court thereupon heard evidence on behalf of the plaintiff and passed an ex parte. decree. Later on an application was made on behalf of the defendant for restoration of the case but this application was refused by the Munsif. Then the defendant preferred two appeals one against the decree and another against the order rejecting the application for restoration. Both these appeals were heard at the same time by the District Judge who dismissed the appeal against the order rejecting the application for restoration on the ground that the defendants had not shown sufficient cause for their absence and also dismissed the appeal against the decree. After that the defendants preferred a second appeal against the decree of the District Judge dismissing the appeal against the original decree but did not move the High Court against the dismissal of the appeal in the matter of the application for restoration of the suit. It was contended before the High Court in second appeal against the decree of the District Judge confirming the original decree, that the Munsif ought not to have disposed of the case in the absence of the defendants; and it was held that this was a matter which could not be considered in that appeal. The circumstances of that case are peculiar and the facts are quite distinguishable.
8. In my opinion, it is open to a defendant to prefer an appeal against the ex parti decree as also to make an application under Order IX, Rule 13 and then to come up in appeal under Order XLIII, Rule 1, Clause (d). If he follows the special procedure of Order IX, he will have an opportunity of placing before the Court materials as to why he was precluded from being present when the case was tried ex parte. On the other hand, if he proceeds straight in an appeal against the original ex parte decree he will no doubt be at some disadvantage, because, the Court of Appeal will not be in possession of the materials which prevented his appearance. If, however, the defendant can show that there is an error, defect or irregularity, in an order rejecting his application for time, which affects the decision of the case, there is no reason why he will not succeed even if he does not adopt the special procedure for a restoration of the suit and comes up in second appeal so long as he can bring the case within the purview of Section 100 of the Code of Civil Procedure. The view that I take is supported by the Full Bench decision of the Madras High Court in Sadhu. Krishna Ayyar v. Kuppan Ayyangar 30 M. 54 : 1 M.L.T. 268 : 16 M.L.J. 479 where also an appeal was preferred by a defendant against an ex parte, decree without making an application under the special procedure provided by the Code for setting aside the said decree. I may also refer to a decision of this Court in S.N. Mullick v. Ganga Gope 91 Ind. Cas. 167 : 7 P.L.T. 331 : (1925) Pat. 199 : A.I.R. 1925 Pat. 534 where it was held that the improper refusal of the Court to grant time to the defendant has affected the decision of the case and he was entitled in appeal to question the propriety of the order refusing an adjournment.
9. Holding as I do that the appellants were not confined in attacking the ex parte, decree to the merits of the case let us see whether the Court was justified in proceeding with the suit on the 22nd September and passing an ex parte decree after rejecting the defendants' petition for time. The suit had been adjourned from the 19th of August to the 21st of September 1926. That was a holiday and, therefore, the suit was taken up not on the date on which the hearing of the suit had been adjourned but on the following day when it was decided ex parte. Order XVII, Rule 2 provides that the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX, where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. It is evident, therefore, that the Court was not justified in proceeding to pass an ex parte decree under Order IX, on a date to which the hearing of the suit had not been adjourned. In the next place the defendant 1st party applied for time on that date on the allegation that their witnesses had come on the preceding day but had gone away. The correctness of this allegation is not disputed in the Munsifs order dismissing the petition for time or in the judgment of the Appellate Court which states, "that the appellants should have taken warrant of arrest against their witnesses if they thought they would go away after attending the Court on the holiday."
10. No party can anticipate that the date was fixed for a holiday or that the witnesses would go way. So how could they have taken out any warrant of arrest? It was clearly a case in which the petition for time filed on behalf of the defendant 1st party should have been granted and no ex parte decree should have been passed.
11. Lastly, it is contended on behalf of the appellant that if it be assumed that the appellants are limited to the ground of insufficiency of evidence in attacking the ex parte decree that has been passed, even then they must succeed. The burden of proving the want of consideration rests originally on the defendants, but it is urged that when it is conceded in the plaint that the plaintiffs are the sudbharnadars in possession of the mortgaged property and when the plaintiffs' case is that at least part of the consideration money was for payment of rent, then the question would arise whether there was a special contract whereby the duty of paying this public charge devolved on the mortgagor, because the mortgagee in possession is bound under the law to pay rent in absence of the contract, There is no evidence on the record that there was any special contract or that the rent was payable for some other land. Therefore, it is a moot question whether the evidence is sufficient for a decree in favour of the plaintiffs. All these aspects have not at all been considered by the trial Court or by the learned Subordinate Judge in appeal.
12. In the result the appeal is allowed. The judgments and decrees of the Courts below are set aside and the suit remanded to the trial Court for decision according to law after giving an opportunity to both the parties to adduce evidence. The costs will abide the result.
Fazl Ali, J.
13. I agree.