Bhagavandas Goel and Sons vs Uleechalla E. Hanumanthiah Chetty

P.V. Rajamannar, C.J.—This is an appeal against the judgment of Ramaswami, J. dismissing an application by the Defendant in Civil Suit No. 227 of 1954, on the Original Side of this Court for setting aside an ex parte decree passed against him in the suit. The order of Ramaswami, J, under appeal runs thus:

This suit has been disposed of on merits. Therefore the proper and only course is to prefer an appeal against my decree. With these remarks this petition is dismissed. No costs.

With respect to the"learned Judge, we are unable to understand exactly the ground on which the petition was dismissed. Every ex parte decree except in cases of suits filed under Order VII of the Original Side Rules is a decree passed on merits. The fact that the Defendant is set ex parte, does not dispense with the necessity of the Plaintiff proving his claim. If the learned Judge meant that an application to set aside an ex parte decree was not maintainable, we must express our disagreement with him. Order VI, Rule 2 of the Original Side Rules prescribes the procedure in posting cases in the list of undefended cases. These cases are "heard and disposed of ex parte." The rule goes on to say that the Court shall not set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing in sufficient time to appear and answer the Plaintiff''s claim. This provision is a clear indication that the Court in proper cases has the power to set aside a decree passed ex parte. Moreover, we see no reason why the provisions of Order IX, Rule 13 of the Code of Civil Procedure, should not apply to, a decree passed ex parte on the Original Side of this Court. Order I, Rule 3 of the Original Side Rules, only says that the provisions of the Code, so far as such provisions are inconsistent with the Original Side Rules and forms are repealed and superseded. Otherwise, the provisions of the Code will apply. There is nothing in the Original Side rules or forms which is inconsistent with Order IX, Rule 13 of the Code.

Mr. Thyagarajan, learned Counsel for the Respondent, drew our attention to two decisions of the Calcutta High Court. In S.N. Banerjee v. H.S. Suhrawardy (1927) ILR 65 Cal. 473 it was held by Rankin, C.J., and Mitter, J., that, though Order IX, Rule 13 may not apply in terms to decrees passed on the Original Side of the Calcutta High Court, it was the general practice in that Court to follow the analogy of Order IX, Rule 13 on general principles of justice. The same view was taken in a subsequent decision in Haji Ramjan Ali Vs. Hafiz Abdul Gaffiur and Others, . We would, however, prefer to rest our decision on the applicability of Order IX, Rule 13 of the Code.

We cannot uphold the learned Judge''s order dismissing the application merely on the ground that the suit had been disposed of on the merits. The appeal must, therefore, be allowed.

The question is whether it is necessary to remand the application to the learned Judge in chambers for fresh disposal. Learned Counsel on both sides have asked us to dispose of the application on the affidavits, and we shall do so.

In the circumstances alleged in the affidavit filed in support of the application, we are of opinion that this is a case in which the ex parte decree should be set aside. Learned Counsel engaged by the Defendant could not obtain instructions in time to file a written statement, and subsequently when the suit was posted in the undefended board, unfortunately he and his clerk missed noting the case and the suit was decreed ex parte. We think that there was sufficient cause which prevented the Defendant from appearing in person or by Advocate on the date on which the suit was taken up for final disposal. The Defendant ought to have an opportunity to defend the suit.

At the same time, it cannot be denied that there was some negligence on the part of the Defendant. Therefore, there cannot be an unconditional order setting aside the ex parte decree. We think that the interests of justice would be amply met if, as a condition, we direct the Defendant to deposit a sum of Rs. 20,000, or furnish security for the said sum to the satisfaction of the Second Assistant Registrar within a month from this date. On his depositing such sum or furnishing security therefor, the Defendant will be allowed to file his written statement within six weeks from to-day.

The Plaintiff will also be entitled to the coats thrown away as it were by reason of the Defendant''s default. The costs of the suit as such will, of course, abide the final disposal. But irrespective of the event, we direct the Defendant-Appellant to pay a sum of Rs. 250 to the Plaintiffs as costs thrown away.

The appeal is allowed and the order of the learned Judge dismissing the Appellant''s application to set aside the ex parte decree is vacated, and instead, there will be an order setting aside the ex parte decree on the conditions above mentioned. No order as to costs of this appeal.