Arunachallam Chettiar vs Sivalingam Chettiar

Wallace, J.—This civil revision petition is against the order of the lower Court holding that it has no jurisdiction to entertain a petition to set

aside certain findings recorded by it on 28th October 1926 in O. S. No. 64 of 1925.

The facts are as follows: O. S. No. 64 of 1925 is a suit for partition. A preliminary decree had been passed and an enquiry into accounts was

ordered. It was posted for 27th October 1926, the defendant having undertaken to produce his witnesses on that day. On that day, when the suit

was called on for hearing, the defendant''s pleader asked for an adjournment on the ground that defendant was ill and could not appear and that his

witnesses also were absent. The adjournment was refused. P. W. 15, witness for the plaintiff, then went into witness-box and was examined and

the defendant''s pleader cross-examined him. Plaintiff''s case was then closed and the Court called on the defendant''s pleader to put forward his

case. He then said he had no instructions and presumably retired from the case. The Court adjourned the case for findings on the evidence

recorded to the next day and on that day findings were pronounced and the case was adjourned to 15th November 1926 for further proceedings

by way of division of the property. On 10th November 1926, defendant''s vakil put in a petition asking the Court to set aside what he called the ex

parte findings. The Court rejected that petition, holding that the defendant was not absent in the legal sense, that the findings were not ex parte and

that Order 9, Rule 7 has no application. The defendant comes up in revision.

It has been pointed out by the respondent that the final decree in the suit was passed on 29th November 1926, before this petition was filed in

this Court, and it is contended that therefore it is not open to the petitioner to have the matter raised by way of revision since he can raise it by way

of appeal against the final decree. It is not, however, an invariable rule of this Court that it will not interfere in revision when a party has another

remedy open to him although certainly in such cases it would require very strong grounds to induce the Court to interfere. My attention has not

been directed to any case in which this Court has interfered in revision to set aside an interlocutory order or finding in a suit on a petition presented

after the final disposal of that suit by the lower Court. The petitioner obviously has his ordinary remedy by way of appeal. This is not a case in

which the order under revision is an order absolutely without jurisdiction as was the case in Manickam Pillai v. M. Bathummal A. I. R. 1925 Mad.

209 relied on by the petitioner. I have, however, heard the case on the merits in order to see whether there are any very strong grounds for

interfering at this stage, or for supposing that the matter cannot be adequately dealt with on appeal. It appears to me that it by no means follows as

a matter of course that a reversal now of the Subordinate Judge''s order will entail the cancellation of the decree now passed. A reversal of that

order would, at the most, lay down that the Court was mistaken in holding that it had no jurisdiction to entertain the petition and set aside its

finding; but there is nothing in that which would ipso facto involve a cancellation of the decree.

It is not, however, necessary to consider this point further as I am of opinion that the Subordinate Judge is right in his view that the petition was

not ex parte when the evidence on the findings was taken and the findings delivered. It is not necessary of course that a party should be formally

placed ex parte before he becomes ex parte and if the Subordinate Judge was under that impression that is an erroneous one. A party is ex parte

or not according as he had not or had appeared within the meaning of that term as used in Order 9.

It is argued for the petitioner that when his vakil, in answer to the Court''s direction to open his case for the defence, stated that he had no

instructions to do so, the defendant''s appearance, which had lasted up to that point of time in the case, ceased and that, therefore, for the rest of

the hearing, it was a case of non-appearance by the defendant. The logical result of such a contention would be that the moment a party or his vakil

sees that the evidence or order or judgment in the case is going or likely to go against him the vakil can say that he has no instructions and compel

the Court''s order to become an ex parte one, and thus either gain time to reconstruct his position or to have whatever order is passed

subsequently revised by the Court or at least have a chance of its being revised by the Court or by the High Court. I should be very reluctant to

interpret the relevant provisions of the CPC in such a way as to give scope for this sort of reprehensible tactics and thus take the conduct of the

case virtually out of the hands of the Court and put it at the mercy of the vakils or parties. I do not think the Code contemplates any such

proceeding.

The rule which is called in aid is Order 17, Rule 2 which relates back to Order 9 and the rule under Order 9 which applies is Rule 7 which

relates back to Rule 6. Rule 6 says that where the defendant does not appear ""when the suit is called on for hearing""then certain results follow. The

reasonable interpretations of that phrase seem only two: first, (when an appearance under Order 9 is in question) that the rule is limited to the first

day of hearing so as to distinguish between these provisions and those of Order 17, R. 2; and secondly (when an appearance under Order 17 is in

question) that it is limited to the commencement of the hearing on each day of hearing. It is unreasonable to hold, as defendant would contend, that

the suit is in a continuous state of being called on for hearing so long as it is being heard. Defendant attempts to support his argument by reference

to cases in which it has been held that when an application by a vakil merely for an adjournment is refused and then he reports no instructions,

there has been no appearance of the party: see Arunachala Goundan v. Katha Goundan A. I. R. 1924 Mad. 842 Manickam Pillai v. Bathummal

A. I. R. 1925 Mad. 21 Satish Chandra Mukerjee v. Ahara Prasad Mukerjee [1907] 31 Cal. 403 and Soonderlal v. Gourprasad [1899] 23 Bom.

414 the argument being that the hearing must have already begun when the discussion on the application for adjournment was being heard. But

such cases seem to me clearly distinguishable. The matter then being heard is whether or not the hearing of the suit is to go on and the decision is

whether the hearing will or will not go on. But when the real hearing of the suit has begun, witnesses for the other side have been examined, and the

vakil appears for the party and cross-examines these witnesses, I do not see how it can be reasonably held that, when the Court calls upon him to

enter on his defence, it is calling on the suit for hearing within the meaning of Rule 6. I am clear that Rule 6 was not intended to imply that a party or

his vakil may drop out of the suit at any stage he chooses, so as to put himself in a position to say that the remainder of the hearing was a hearing

ex parte and, therefore, liable to be revised and cancelled.

I need not in this case go so far as to lay down that where a vakil, when the. suit is called on for hearing, informs the Court that his instructions

are limited to some particular function or stage in the case, and the Court then decides to go on with the hearing, the hearing beyond that function

or stage will not be a hearing ex parte. In the present case no such information was given to the Court before the hearing was taken up. I therefore,

agree with the lower Court that this is not a case of non-appearance to which Order 9, Rules 6 and 7, apply and I dismiss the revision petition with

costs.