Kesharia Accomar Sreesungjee vs Potooah Sett and others

This is an application by the Defendant under sec. 108 of the CPC to set aside the decree passed in this suit on the 3rd of March last. The Plaintiff sued for the return of certain jewellery by the Defendants or for the value thereof, for an account of certain transactions between them and the Defendants'' firm of Sett Pertab Chand Himmutram and other relief. The suit was instituted on the 5th of June 1893 against seven persons who were the owners of the firm of Sett Pertab Chand Himmutram, but it is alleged on behalf of the Defendants, and not denied that the summons was not served till the 9th of October 1895. On the 28th of October 1895 the Defendants other than the 1st Defendant entered appearance in the suit and thereafter negotiations for a compromise took place between them and the Plaintiff, and these negotiations seem to have continued down to the month of February 1897. On the 26th of February 1897 the case came on for hearing apparently as a defended cause, and at that hearing the Defendants appeared by counsel and applied for an adjournment on the ground that negotiations for an amicable Settlement were going on. By consent the case was adjourned for the parties to come to an amicable settlement, but it seems that the negotiations fell through and no settlement was arrived at. On the 25th of March 1897, the Defendants who had appeared filed their written statement in which they set forth their defence to the Plaintiff''s claim and submitted that the suit should be dismissed not only on the merits but also on the ground that this Court had no jurisdiction to entertain it.

On the 29th of March 1897, the Plaintiffs attorney wrote to the attorney for the Defendants staling that the Plaintiff would, on the case being called on for hearing, apply for an order upon the Defendants to file their verified list of documents and for inspection and that the case might be taken out of the cause list for that purpose; he also stated that he had been informed that the 1st Defendant was dead and that it would be necessary to revive the suit in the names of his representatives.

On the 30th of April 1897, the representatives of the 1st Defendant were substituted upon the record, and on the 18th of May 1897 an order was obtained by the Plaintiff upon the answering Defendants to file their affidavit of documents within six weeks from the date of the order, and this order was served on their attorney on the 29th of May 1897. No steps were taken by them to obey the order and on the 5th of May 1897 the Plaintiff''s attorney took out a summons for an order that the answering Defendants might be ordered to file their affidavit of documents within 24 hours and that in default their defence might be struck out. This summons came on for hearing on the 9th of August 1897, when an order was made by consent allowing the Defendants a month''s further time to file their affidavit, it appearing that their attorney had already sent the affidavit of documents to them to be affirmed.

On the 16th day of November 1897, the Plaintiffs attorney wrote to the Defendants'' attorney requesting him to file the affidavit of documents at once, but no notice was taken of this letter. On the 1st of December 1897, the Plaintiff applied for an order that the affidavit of documents should be filed within 24 hours and that in default the defence should be struck out and the suit transferred to the undefended list of causes. The Defendants applied for six weeks'' further time to file the affidavit and this was granted them, it being directed that in default of the affidavit being filed the defence of the Defendants should be struck out, and that they should be placed in the same position as if they had not appeared, and that this suit should be transferred from the defended to the undefended list of suits.

On the 3rd of January 1898, Mutty Fall Sett, one of the answering Defendants, died, and on the 6th of January this fact was communicated to the Plaintiff''s attorney by the Defendants'' attorney, the latter suggesting that the suit could not be proceeded with till it would be revived. On the 7th of January, the Plaintiff''s attorney wrote asking the names of Mutty Lall Sett''s representatives but no reply was sent to his letter. No affidavit of documents having been filed, the case came on for hearing on the undefended list of causes on the 3rd of February 1898, when it was again adjourned for a month at the instance of the Defendants to allow of the representatives of Mutty Lall Sett being placed on the record.

On the 3rd of March 1898, the case came on again for hearing on the undefended list of causes when a further postponement was asked for by the Defendants. The Court refused to grant it and the case was heard as an undefended cause and a decree made against the surviving Defendants who had appeared and filed their written statement.

These Defendants now come in and apply Upon a summons for an order "that the decree passed in this suit ex parte should be set aside, and their defence restored, and that thereafter the suit be proceeded with as a defended suit and that the costs of and incidental to this application be costs in the cause.

It was argued before me In support of the application that the decree of the 3rd of March was an ex parte decree, such as is contemplated by section 108 of the Code, and might therefore be set aside under that section upon a proper case being made; and as regards the merits of the application an affidavit made by Askaran, a gomastah of the Defendants, was relied on.

I am of opinion that the decree of the 3rd of March is not an ex parte decree within the meaning of sec. 108 of the Code. By sec. 64 of the CPC a summons may be issued to each Defendant to appear and answer the claim on a day to be therein specified and Chapter VI of which this section forms part lays down the manner in which the summons shall be issued and served. Chapter VII takes up the suit at the stage it has reached when the summons has been served and deals with the appearance of the parties and the consequences of non-appearance. Under the provisions of sec. 96 the day fixed in the summons for the Defendant to appear and answer becomes the day fixed for the first hearing of the suit, and the hearing is directed to take place on that day unless it be adjourned to a future day to be fixed by the Court. Sec. 97 deals with the first hearing, while sec. 98 deals with the first hearing as well as with a hearing which may have been adjourned under the provisions of sec.

96. Sec. 100 also, in my opinion, deals like sec. 98, with the first hearing or a hearing adjourned under sec. 96, but evidently it does not contemplate a hearing after the Defendant has appeared to the suit. Sees. 102, 104, 105, 106, and 107 also refer to the first hearing, or a hearing adjourned under sec. 96, and then comes sec. 108 which deals with the setting aside of decrees ex parte.

Under this section a decree passed ex parte against a Defendant may be set aside if he satisfies the Court " that the Summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

In my opinion the wording of this section as well as its position in the Act show that its operation is limited to decrees made ex parte under the provisions of Chapter VII, and dots not govern other decrees made ex parte unless where it has been expended to these decrees by other provision; of the Code.

It was also contended, when the defence was struck out under the provisions of sec. 136 and the suit placed on the undefended list of causes, that the Defendants were placed in the same position as if they had not appeared and answered and therefore were entitled to treat the decree as a decree passed against them in default of appearance and therefore liable to be set aside under the provisions of sec. 108.

To accede to that contention would be to ignore the circumstances under which the decree was passed. As a matter of fact there was no default of appearance in any sense of the word. The suit was treated as an undefended suit not because the Defendants failed to appear but because of their misconduct in not obeying the order of the Court.

The strength for their present contention is based upon the words in sec. 136, which declare that in case a Defendant shall fail to comply with any of the orders indicated in the section, he shall be liable to have his defence struck out "and to be placed in the same position as if he had not appeared and answered." Whatever may be the effect of this last clause 1 cannot hold that it introduces into the class of cases dealt with by sec. 108 a new class of cases of an entirely different character,--see Choonee Lall v. Chaman Lall I. L. R. 7 Mad. 139.

In the case of Khajah Assanoolla Joo v. Khajah Abdool Aziz I. L. R. 9 Cal. 923 Mr. Justice Pigot made an order striking out the Defendants'' defence, and at the same time mentioned that the party against whom the order was made might come in and seek to set aside on showing good grounds for the application. That however was a very different case from the present. Mr. Justice Pigot''s order was merely an interlocutory order, and there is a large discretion as to orders made on interlocutory application than as to those which are final decrees, Mullins v. Howell II Ch. Div. 767. Taking the view which I do of the first point, it becomes unnecessary to enquire into the grounds put forward in support of this application. But I think it right to state that if under any circumstances I should feel at liberty to set aside the decree of the 3rd of March 1898 the materials before me are not such as would induce me to do so.