In Re: Chinnaswamy Iyer

Raghava Rao, J.—Mr. T. V. Balakrishnan has in a well presented argument sought to persuade me to admit this revision petition. I regret I cannot do so. The revision petition has been preferred against the order of the appellate Court setting aside an ex parte decree in reversal of the order of the Court of first instance refusing so to set it aside The chief point stressed by the learned Counsel is that there is no clear finding expressly recorded by the lower appellate Court that sufficient reason existed for the failure of the defendant to appear when the suit was called on for hearing. It is true that the trial Court refused to set aside the ex parte decree on the ground that it found as a matter of fact that there was no sufficient cause for the non-appearance of the defendant on the date of hearing, The lower appellate Court has however following the decision of this Court reported in Arunachala Aiyar v. Sabbaramiah 46 Mad- 60 = 16 L. W. 583. come to the conclusion that it is not the bare human possibility of the defendant being present when the case was called on for hearing that would matter but the question whether he in fact did or did not take reasonable steps to be present in Court which failed for no fault of his own. The lower appellate Court has in fact referred to three documents Exs. A-1 to A-3 as showing satisfactorily enough that as spoken to by P. W. 1 the defendant had come to Palghat on the morning of 10th September, 1949 in connection with a certain receiver petition pending in the Court of the District Munsif of Palghat. Mr. Balakrishnan contends that if one looks into the documents, Exs, A-1 to A-3 they do not support the conclusion of the learned Subordinate Judge for, according to the learned Counsel''s submission Ex. A-1 does not refer to the presence of P. W. 1 at Palghat on the morning of that date but merely says he was there on that date to instruct the pleader at Palghat in connection with a petition for the appointment of a receiver in a suit pending there. Mr. Balakrishnan also draws my attention to the case reported in Aravapalli Viresam Vs. Gurram Adinarayana and Others, as showing that in this Court there is a conflict of judicial opinion on the question whether there should or there need not be a definite finding recorded by the Court setting aside the ex parte decree in favour of the existence of sufficient cause for non-appearance of the defendant at the time when the case was called on for hearing. The decision cited is of Wadsworth, J., which held that notwithstanding the recording of a finding regarding the presence of sufficient cause for interference under O. 9, R. 13 is not a mandatory requirement for an order setting aside an ex parte decree, still it is most desirable that a finding on the facts should be given explicitly although the absence of such a finding is not a ground for interference in revision. The learned Judge refers to the view of Ananthakrishna Aiyar, J. in Vaithi Chetti v. Govintdam Pillai 1931 M. W.N 268 as insisting upon the recording of a finding regarding the presence of sufficient cause for interference under O. 9, R. 13, Civil Procedure Code, and to the contrary view of Stodart, J. which the learned Judge actually followed in preference to that of Ananthakrishna Aiyar, J, Mr. Balakrishnan has also mentioned to me a certain decision of Balakrishna Aiyar, J., which according to the learned Counsel insists upon the recording of a finding regarding the presence of sufficient cause by the Court setting aside the ex parte decree. The decision of Balakrishna Aiyar, J. has not been produced before me but I shall take it that the learned Judge has ruled to the same effect, as Ananthakrishna Aiyar, J. in the case referred to by Wadsworth, J. in Aravapalli Viresam Vs. Gurram Adinarayana and Others, . Even assuming with the learned Counsel for the petitioner that the recording of a finding regarding the presence of sufficient cause for nonappearance of the defendant is necessary I am not satisfied that there is no such finding in the order of the lower appellate Court in the present case. The very fact that the lower appellate Court has referred to the evidence furnished by Exs. A-1 to A-3 and to the decision in Arunachala Aiyar v. Subbaramiah 46 Mad- 60 = 16 L. W. 583 makes it reasonably clear that the learned Judge was prepared on his view of the evidence adduced on the petition to reverse the decision of the learned District Munsif on the question of the existence of sufficient cause for non-appearance of the defendant on the date when the case was taken up for hearing. This being my view of the matter in the present case, really the question whether in every case of setting aside of an ex Parte decree there must be or need not be an express finding regarding the presence of sufficient cause for interference under O. 9 R. 13, Civil Procedure Code, does not arise for decision. I may however say that I am in perfect agreement with the view taken by Stodart, J. and Wadsworth, J. as against the view of Ananthakrishna Aiyar, J. to the contrary.

In these circumstances this revision petition must be rejected.