Khedu Naek and Others vs Rajib Ray

Das, J.—This appeal is directed against; the order of the 12th April 1926, passed by the learned Subordinate Judge of Hazaribagh. The appellants were Defendants 2 and 3 in a suit for recovery of possession of certain properties. The suit was fixed for hearing on the 9th June 1925. The order-sheet of the 9th June 1925 runs as follows:

Parties ready. Facts of the suit stated, after which both parties'' pleaders request for half-an-hour''s time to settle the matter out of Court, This allowed till 10 a.m. Documents filed by plaintiff be kept with the record. Its admissibility will be considered when tendered.

Stopping here for a moment: it is quite clear that the parties were ready on the 9th June 1925, and the question, whether Defendants 2 and 3 were ill or well that day, did not matter at all so far as the hearing of the suit was concerned. It appears that the parties then filed a joint petition for one day''s time to compromise the suit. The case was ultimately compromised as between the plaintiffs and all the defendants other than Defendants 2 and 3. The pleaders for Defendants 2 arid 3, who were actually present in Court, stated that they had no power to compromise the suit on behalf of the defendants who were absent. The Court thereupon asked the plaintiff to prove the case against Defendants 2 and 3; that evidence was given and the learned Subordinate Judge pronounced judgment on the 11th June 1925.

In that judgment ha deals with the compromise between the parties and then his order runs in these terms:

And I order that the suit be decreed on compromise against Defendants 1, 4, 8, 10 and 12 to 14 and ex parte against the remaining defendants. The terms be all embodied in the decree.

Thereafter Defendants 2 and 3 presented an application for setting aside the ex-parte decree. That application failed. The present appeal is against the order refusing to sot aside the ex-parte decree. In my opinion the decree passed by the learned Subordinate Judge, on the 11th June 1925 cannot be regarded as an ex-parte decree. It is quite clear that the parties were ready that day, although Defendants 2 and 3 were not actually present in Court. Although Defendants 2 and 3 were not present in Court their pleader was present and their pleader was competent to cross-examine the plaintiff and to adduce evidence on behalf of Defendants 2 and 3. There is nothing in the order-sheet to show that any application for adjournment of the suit was made on behalf of Defendants 2 and 3, and nothing to suggest that the pleader of Defendants 2 and 3 retired from the suit. It is well settled that, if a pleader engaged by a party be actually present in Court, the decree passed in the presence of that pleader cannot be regarded as an ex-parte decree, although it may be that his client may not have been present.

In my opinion, therefore, the judgment of the 11th Jane, as against Defendants 2 and 3 cannot be regarded as an ex-parte judgment. This being the position, an application for setting aside the ex-parte decree did not lie and the learned Subordinate Judge was right in dismissing that application.

I would therefore dismiss this appeal with costs.

Adami, J.

I agree.