Ahmad Raza Khan and Others vs Zain-Ul-Abdin Khan

Barnes Peacock, J. 1. The question in this case is whether the first part of Section 119 of Act VIII of 1859 applies to a case which has been decided under the provisions of Section 147 of the same Act. That part of Section 119 is in the following words: "No appeal shall lie from a judgment passed ex parte against a defendant who has not appeared." Section 119 must be read together with Sections 109, 110, and 111. Section 109 says: "On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by a pleader, and the suit shall then be heard, unless the hearing be adjourned to a future day which shall be fixed by the Court." Section 110 says: "If on the day fixed for the defendant to appear and answer or any other day subsequent thereto to which the hearing of the suit may be adjourned, neither party shall appear, either in person or by a pleader, when duly called upon by the Court, the suit may be dismissed." There the words are;" If on the day fixed for the defendant to appear and answer, or any other day subsequent thereto to which the hearing of the suit may be adjourned." Then comes Section 111, which says: "If the plaintiff shall appear in person"--it does not say "on the day fixed, or on any subsequent day," but simply "if the plaintiff shall appear in person or by a pleader, and the defendant shall not appear in person or by a pleader, and it shall be the satisfaction of the Court that the summons was duly served, the Court shall proceed to hear the suit ex-parte." Sections 109 and 111, taken by themselves, clearly relate to the appearance of parties and to their non-appearance, at the first hearing of the suit. The 146th and 147th sections are enactments relating to adjournments. Section 147 enacts that "if on any day to which the hearing of the suit may be adjourned, the parties, or either of them, shall not appear in person or by pleader, the Court may proceed to dispose of the suit in the manner specified in Section 110, Section 111, or Section 114, as the case may be, or may make such other order as may appear to be just and proper in the circumstances of the case." There is no enactment in that section that, in case the Court disposes of the suit in the manner specified in Section 111 (the section which applies to the present case), the first part of Section 119 shall apply to such a judgment. Under Act VIII of 1859 the general rule is that an appeal lies to the High Court from a decision of a Civil or Subordinate Judge, and a defendant ought not to be deprived of the right of appeal, except by express words or necessary implication. Looking at all the sections together, their Lordships are of opinion that the words "who has not appeared," as used in Section 119, mean "who has not appeared at all," and do not apply to the case of a defendant who has once appeared, but who fails to appear on a day to which the cause has been adjourned. 2. There are several cases to that effect decided by the High Court in Calcutta: Marshall''s Reports, page 32; 3rd Bengal Law Reports, Appendix 121, and 6th Weekly Reporter, page 86. 3. Two cases were referred to by the learned Judges who decided this case,--a case in 6th Bengal Law Reports, 688, and one from the North-Western Provinces Reports of 1869, decided the 21st May of that year. Their Lordships have referred to those decisions. It appears to them that the case cited from the 6th Bengal Law Reports, 688, so far from being an authority in support of the decision of the High Court, is rather an authority against it. The case which is cited from the North-Western Provinces Reports of 1869, decided the 21st May of that year, is certainly in conflict with the several decisions in the High Court at Calcutta to which reference has been made, and which in the opinion of their Lordships were correctly decided. 4. Under these circumstances their Lordships will humbly advise Her Majesty that the decision of the High Court was erroneous, and that the case be remanded to the High Court to hear and determine the appeal. The respondents must pay the costs of this appeal.