Amij Bhuyan vs Akram Ali

Ram Labhaya, J.—This is an application for revision from a defendant against an order of the Additional Sub-Judge, L.A.D. dated 30.l1.1949 by which the order of the trial Judge dismissing defendant''s application for Betting aside the ex-parte decree passed against him was affirmed.

On 17-8-1948, the learned Munsiff fixed the case for peremptory hearing on 24-9-1948 on that date both the parties prayed for time for effecting a compromise. Time was allowed till 3-12-1943. The order dated 24-9-1948 also embodies the direction that failing compromise, parties must come ready with witnesses. On 3.12.1948, plaintiff was ready with witnesses. Defendant prayed for an adjournment on the ground that his witnesses were absent. His petition was rejected. Defendant retired and the suit was decreed ex parte. It was expressly stated in the order that the defendant had retired and that the suit be taken up ex parte. Plaintiff''s witnesses were then examined and a decree ex parte was passed. It is clear from the order that the defendant did not participate in the trial after his application for adjournment was rejected. He did not cross-examine witnesses or produce any evidence that may have been available. The examination of plaintiff''s witnesses came after the retirement of the defendant.

Defendant applied under Order 9, Rule 13, Civil P.C. for having the ex parte decree set aside. The learned Munsiff held that the defendant applicant was not diligent. He should have taken steps to produce his witnesses as the plaintiff did. The fact that his witnesses missed the bus was not sufficient cause in his opinion for setting aside the ex parte decree. He also held that the decree in the case had been passed under Order 17, Rule 3, Civil P.C. and, therefore, no application for setting aside the ex parte decree was competent. He rejected the petition on the merits as well as on the ground that the petition itself was not competent.

On appeal, the learned Additional Sub-Judge agreed with the learned Munsiff that the application of the defendant was not competent. He did not go into the question whether sufficient cause bad been shown for setting side the ex parte decree.

By an order of this Court dated 9-5-1950 the learned Sub-Judge was directed to give his decision on the question whether sufficient cause had been shown by the defendant for setting aside the ex parte decree within the meaning of Order 9, Rule 13, Civil P.C. The learned Sub-Judge has reported that defendant-applicant did summon his witnesses. He also paid them expenses in advance. One of the witnesses came with him. But the remaining four witnesses had to come on the date of hearing. They missed the bus. These facts, according to him, were proved. His conclusion was that defendant could not be held guilty of laches or negligence and that sufficient cause had been shown for setting aside the ex parte decree passed against him.

The first question is whether the application under Order 9, Rule 13 for setting aside the ex parte decree was competent. It has been shown above that the defendant retired after his application for adjournment was rejected. It was after his retirement that the Court proceeded ex parte and then after taking plaintiff''s evidence passed the ex parte decree. There is nothing in the circumstances of the case or in the order itself to suggest, even remotely, that the Court in passing the ex parte decree was acting under Order 17, Rule 3. The application of Order 17, Rule 3 also was not attracted. Time had not been obtained by the defendant for producing his evidence. Both the parties asked for time to effect a compromise. In these circumstances Order 17, Rule 3 could not be appropriately applied. Even if such application was possible, the matter was within the discretion of the Court. The order of the Court clearly shows that it proceeded to decide the suit ex parte after defendant''s retirement In other words, it acted under Order 17, Rule 3 read with Order 9, Rule 6 The application for setting aside the ex parte decree, in these circumstances, was clearly competent.

In a Lahore case reported in Murli Dhar v. Duniohand AIR 1923 (10) Lah. 281, Abdul Raoof, J. held that an ex parte decree may be passed even in a case in which the Court acts under Order 17, Rule 3 and came to the conclusion that the ex parte decree which had been passed professedly under Order 17, Rule 3, could be set aside on an application under Order 9, Rule 13, Civil P.C. if sufficient cause for non-appearance could be made out.

It is not necessary for us to go so far, as in the case before us the Court did not act under Order 17, Rule 3, nor was it possible for it to take action under Order 17, Rule 3 as time had not been grand to the defendant for producing evidence.

The finding of the learned Additional Sub-Judge that sufficient cause had been made, out for non-appearance has not been challenged and we see no reason to differ from it. The defendant had taken necessary steps to produce his witnesses. The failure of the witnesses to appear was due to a cause which could not be attributed to mala fides, negligence or laches on the part of the defendant. He was justified in asking for an adjournment when his witnesses failed to attend owing to their accidental failure to catch the bus. There was sufficient cause for retirement or non-appearance.

For the reasons given above we allow the petition and set aside the ex parte decree passed against the defendant-petitioner. The case shall go back to the trial Court for disposal according to law. We shall leave the parties to bear their own costs.

Thadani, C.J.

I agree.