Dal Bahadur Lama vs Ratna Kumari Basnet and Another

A.M. Bhattacharjee, Actg. C.J.

The points for consideration in this Civil Revision are covered by the provisions of Rule 7 of Order IX of the Civil P.C., 1908, a perusal whereof in the light of the decisions of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, and in Arjun Singh Vs. Mohindra Kumar and Others, makes it irresistibly clear that even if a defendant has not appeared at any earlier stage of the hearing of the suit, he can appear at any later stage and participate in the proceeding at and from that stage as a matter of right without even requiring to show any cause for his earlier non-appearance, but if he can assign good cause for such non-appearance before, he may even be allowed to set back the hands of the clock and to have all the earlier proceeding recalled and to have the suit heard in his presence ab initio as if he duly appeared at the commencement.

In the leading decision of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , Vivian Bose, J., solemnly reminded us (at 429) that there must be ever present in our mind that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and properties should not continue in their absence and that they should not be precluded from participating in them, unless the Code of procedure expressly provides to the contrary and that our laws of procedure should be construed, wherever reasonably possible, in the light of that principle and observed (at 432), as hereunder:

he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some, other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of clock. Order 9, Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.

In Arjun Singh Vs. Mohindra Kumar and Others, ," Ayyangar, J., after quoting from and relying on Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, has observed (at 1004) as hereunder:

on the terms of Order IX, Rule 7, if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days, he might have the earlier proceedings recalled ''set the clock back'' and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial.

That being the position in law, the petitioner before me, who is the defendant No. 1 in the suit giving rise to this revision, has a right to participate in the proceedings in the suit from the stage when he has appeared. It appears from the records that not only the evidence of this case was closed but even arguments were heard on 6-5-1977 and on 31-10-1977 and the case was then adjourned to 29-11-1977 and 31-11-1977 for further arguments and then there was a flood of adjournments on one ground or the other, many of which do not appear to me to be justified at all. Be that as it may, this state of affairs continued up to 17-8-1978 when an application was filed by the other defendants, who were all along contesting the suit, contending that the suit must be deemed to have abated so far the petitioner-defendant No. 1 was concerned as he was not heard of for more than seven years by anyone who would naturally hear of him. There was again a series of adjournments till 29-5-1979 when this petitioner-defendant No. 1 himself appeared and filed a petition for permission to file written statement and then another petition on 7-6-1979 for setting aside the order dated 27-7-1974, whereby it was ordered that the suit was to proceed against this petitioner-defendant No. 1 ex parte as he did not appear in spite of substituted service of summons. Rejection of this petition has given rise to this revisional application.

Be that as it may, as the petitioner-defendant No. 1 has appeared before the hearing of arguments in the suit was concluded, he has, as already indicated, right to participate in the arguments and the learned District Judge has, by his impugned order, allowed him to do so. If the hearing of the arguments was also completed before the defendant No. 1 appeared and the Court adjourned the suit merely for the purpose of pronouncing judgment, then, as held in Arjun Singh Vs. Mohindra Kumar and Others, at 1003), there was no adjournment of hearing within the meaning of Order IX, Rule 7 and the said provisions being thus inapplicable, j the only remedy available to the defendant No. 1 under Order IX would have been to apply under Rule 13 for setting aside of the decree, if any, that would have been eventually passed.

But should the petitioner have been allowed "to be heard in answer to the suit as if he had appeared on the day fixed for his appearance?" The learned District Judge could have allowed him to do so if he was satisfied that the petitioner assigned "good cause for his previous non-appearance". But the learned District Judge has firmly held that the petitioner has not; the learned Advocate for the respondents also strongly urges that he has not; but the learned Advocate for the petitioner strenuously submits that he has.

I am, however, afraid that even if I feel that on the materials on record the learned District Judge could have and/or should have held that the petitioner-defendant No. 1 assigned good cause for his previous non-appearance, I, sitting in revision, would be exercising a jurisdiction not vested in me u/s 115, Civil P.C., if I disturb the finding of the learned District Judge, arrived at by him after appreciating, in his own way, the facts and the materials on record and replace the same by a contrary finding after a fresh reappraisal of those facts and materials. Law on this point is really well-settled for about a century and whether one refers to the Privy Council case of Rajah Amir Hassan Khan v. Sheo Baksh Singh 1884 11 Ind App 237, decided as early as in 1884, or to a later Privy Council case of T.A. Balakrishna Udayar v. Vasudeva Aiyar AIR 1917 PC 71 or to the much later Privy Council case of AIR 1949 156 (Privy Council) or one refers to the Supreme Court decision in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, or to the later decisions of the Supreme Court in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, and in Shri M.L. Sethi Vs. Shri R.P. Kapur, , one will find the law to be the same and the position in law will appear to be firmly established, as stated in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, at 2327, "that while exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself". A plain reading of the section makes it irresistibly clear that unless the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested in it or has exercised a jurisdiction so vested, but in such exercise has acted illegally or with material irregularity, its orders are immune from the revisional interference by the High Court. As observed by the Privy Council in T.A. Balakrishna Udayar''s case AIR 1917 PC 71 at p. 74, quoted with approval by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, at p. 27 "the section applies to juridiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it" and "is not directed against conclusions of law or fact in which the question of jurisdiction is not involved".

It cannot be said nor it has been contended by Mr. Kharga, appearing for the petitioner-defendant No. 1, that in passing the impugned order and thereby dismissing the application of the petitioner under Order IX, Rule 7 and refusing his prayer in reopening the whole case, the learned District Judge has exercised a jurisdiction which he has not or has refused to exercise a jurisdiction which he has. The learned District Judge in passing the impugned order has, without doubt, exercised a jurisdiction which he has yetted in him and, therefore, the revisional Jurisdiction of this Court can, be invoked vis-a-vis the impugned order only if the learned District Judge, in passing the said order, has acted "illegally" or "with material irregularity" within the meaning of Clause (c) of Section 115, Civil P.C. Now, the expressions "illegally" and "with material irregularity" as used in Section 115(c), do not, as observed by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, at p. 28 and in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, at p. 2327, cover either errors of fact or of law and "do not refer to the decisions arrived at but merely to the manner in which they have been reached". The errors contemplated relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law after the prescribed formalities have been complied with.

In this case, in showing cause for his previous non-appearance, the petitioner has urged that since 1970 he has been out of Sikkim and had no contact with his family members and had been travelling to different places and had or could have no knowledge about the institution of the suit. The learned District Judge has, on a consideration of the facts alleged in the petition and the accompanying affidavit, refused to believe the petitioner and has held that no plausible explanation was given as to why he remained cut of Sikkim and could not know about the suit even though his wife and son were codefendants thereto and were contesting the suit in all possible manners. The petitioner did not examine himself or any other witness, but this being an interlocutory application, the learned District Judge was entitled to dispose of the same on affidavit under the provisions of Order XIX, Rule 2. Even assuming, though not deciding, that the conclusion arrived at by the learned District Judge on the facts alleged in the petition and the affidavit was erroneous, that cannot justify any interference in revision as it cannot be said that in passing the impugned order, the learned District Judge assumed a jurisdiction which he did not possess or in exercising such jurisdiction, committed any breach of any provision of any law, whether substantive or procedural, and as such, acted illegally or with material irregularity in the exercise of such jurisdiction. I do not suggest that the conclusion reached by the learned District Judge was erroneous; but what I want to point out is that even if I thought that on the materials before the learned District Judge, some other conclusion could and should have been arrived at, I cannot still interfere in revision and substitute ray own conclusion for the one arrived at by the learned District Judge. As pointed out in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, at p. 2328, even if I would have felt inclined, had I dealt with the matter initially, to come to a different conclusion on the materials on record, that can hardly justify interference in revision u/s 115, Civil P.C., when there is no illegality or material irregularity committed by the learned District Judge in his manner in dealing with the application. As pointed out by the Privy Council in AIR 1949 156 (Privy Council) , Section 115 applies to a case in which no appeal lies and where the Legislature has thus provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final, unless, as already noted, in making the order, the trial Court has either failed to exercise a jurisdiction vested in it, or has illegally assumed a jurisdiction not vested in it, or has exercised the jurisdiction so vested illegally or with material irregularity, that is, in breach of any provision of law, substantive or procedural. The High Court, as observed by the Supreme Court in Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, at p. 1338, cannot question the findings of fact recorded by a subordinate Court in the exercise of its revisional jurisdiction u/s 115, which is confined to cases involving questions of jurisdiction, i.e., as to whether there is irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by the lower Court and it cannot decide points of law or fact in which questions of jurisdiction are not involved and the High Court cannot allocate to itself the power to reassess evidence. I must, therefore, decline to interfere in revision in this case and dismiss this revisional application.

This is sufficient to dispose of this application. But before I part, I would'' like to point out that it was held by Wanchoo, C.J. (as his Lordship then was) in a Division Bench case of the Rajasthan High Court in Mangalsingh Vs. Sagarmal and Others, , relying mainly on his Lordship''s own judgment for the Full Bench of that High Court in Purohit Swarupnarain Vs. Gopinath and Another, that where an application by a defendant under Order IX, Rule 7 has been dismissed, it is open to the defendant to make it a ground u/s 105 in the appeal which would finally come to the High Court from the decree passed in the suit and as such, an appeal lies, though not directly, to the High Court from such an order, which can be questioned in such appeal and, therefore, a revision, which would lie only when no appeal against the order lies to the High Court, does not lie. If the matter rested there, I might have to hesitate a good deal before dissenting, with all humility, from the considered decision of that eminent Judge in those Full Bench and Division Bench cases. But now that the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, has expressly overruled the Rajasthan Full Bench decision in Purohit Swarupnarain''s case and the Division Bench decision in Mangalsingh''s case has thus stood impliedly overruled, I have been relieved of all such strain and following the Supreme Court decision, as I must, I will hold that a revision against an order passed under Order IX, Rule 7 is ''maintainable. The Supreme Court in that decision has held (at 501)'' that "if an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction; but where the decision itself is not appeal" able to the High Court directly or indirectly, exorcise of the revisional jurisdiction by the High Court would not be deemed excluded". From the decision or adjudication itself under Order IX, Rule 7, no appeal lies to the High Court, whether directly or through another Court and revision, therefore, is not excluded.

But I have already held that for the reasons stated hereinbefore this revisional application shall fail on merits, even though it is maintainable and the application is, therefore, dismissed, but without costs.