Sarada Devi vs Revathi @ Jagada Pichiammal and 6 others

Mishra, J.—A suit for partition has been decreed ex parte and the application to set aside the ex parte decree has been dismissed. Appeal against the order dismissing the application to set aside the ex parte decree has been dismissed by a learned single Judge of this Court. It appears that after service of notices upon the defendants and the written statement filed on behalf of the second-defendant-appellant, the case was posted for hearing on 18.6.1986. On that day none represented the appellant. The case accordingly was heard on that date and decreed ex parte. The procedure in this behalf required to be followed by the courts is prescribed under Rule 2 Order XVII of the Code of Civil Procedure. The rule says.

Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other as it thinks fit.

Explanation: Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.

Rule 11 of Order 1 of the CPC says:

Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such other as it thinks fit with respect to the defendants who do not appear.

Rule 12 says:

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.

After these rules, comes, rule 13 in this Order, which reads as follows:

13 (1). In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside: and 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, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;

Provided further that no Court shall set aside a decree passed ex pane 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 and had sufficient time to appear and answer the plaintiffs claim.

(2) The provisions of S. 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-rule (1) Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

We do not have any material to know whether it was a case in which the second-defendant/appellants had been asked to appear in person. We do have, however, the specific information because that seems to be the case of the parties that the suit was decreed ex parte under rule 11 of Order IX of the CPC and accordingly, an application was filed to set aside the ex parte decree. The second defendant has not disputed the fact that the hearing of the case was fixed for 18.6.1986, but has stated that her mother-in-law died on 22.3.1986 and there was some dispute between her husband and his brother that kept them (the appellant and her husband) confined to the house; more over she was not well. That is why she could not appear on 18.6.1986 in the Court. The appellant did not examine herself, but her husband was examined as a witness on her behalf. The first-plaintiff-respondent, who filed a counter affidavit and controverter the aforesaid allegations of fact, however, led no evidence to rebut or contradict the evidence of the solitary witness on behalf of the appellant. In his evidence, her husband reiterated about the death of his mother, about the dispute with his brother, about the fear and for the reason of the fear his and his wife not coming out of the house as well as about the illness of his wife, Both the trial court as well as the learned single Judge, however, have held that the above has not been established as a sufficient cause for setting aside the ex parte decree.

Learned single Judge has said:

The appellant did not examine herself, but had examined her husband. Even in his chief examination, he did not depose that neither he nor his wife could come out of the house. His deposition is that he was afraid of the henchman of his brother and he gave a complaint to the police on 14.6.1986 No copy of the complaint has been filed. He added by stating that they could not come out of the house. It is also deposed by him that his wife was not well. No medical certificate has been produced and the nature of illness has not been proved In these circumstances, the Court below is right in holding that the appellant has not made out sufficient cause for remaining absent on the date of hearing.

It is not exactly correct to say that the appellant''s husband did not depose that neither he nor his wife could come out of his house His deposition is to the effect that there had been dispute with his brother for which reason they could not come out of the house. True he deposed that he gave a complaint to the police on 14.6.1986 and also that he had a doctor''s prescription to support the illness of his wife. But, these documents were not produced in Court. All that can be found, on the basis of the above, is that there has been evidence on behalf of the appellant and her husband from coming to the Court. There is no contra evidence on behalf of the respondents. If the complaint that appellant''s husband allegedly filed with the police or any certificate showing that the appellant was unwell were not filed in Court all that can be said on this basis is that some corroborative evidence, which would have strengthened the case of the appellant, was not produced. A Court, in the absence of corroborative evidence, can undoubtedly reject the oral testimony or evidence. In the instant case, however, it seems non-production of the complaint or any certificate to support the ailment of the appellant, was not on account of any deliberate laches, but for the reason that there was no serious challenge to the allegations about the quarrel with the brother as well as the ailment, for, the respondents never Jed any evidence against the same. We are inclined, for the above reasons, to take a compassionate view and hold that on such facts it is reasonable to infer that the appellant was prevented by a sufficient cause from coming to the Court. For the reasons aforementioned, we are inclined to interfere with the impugned judgments. Accordingly, the Judgment in C.M.A. No. 1039 of 1991 as well as the order in I.A. No. 477 of 1986 in O.S. No. 66 of 1982 is set aside. The suit O.S. No. 66 of 1982 is restored to the file of the Court of the District Munsif, Tuticorin. On the facts of this case, however, we are inclined to order restoration on a payment of Rs. 1, 500/- (Rupees one thousand and five hundred only) only as costs to the first-plaintiff-respondent within two months from today. In the event of default the Appeal shall stand dismissed.