Shanker Dass vs Hans Raj

(1) This revision is directed against a concurrent judgment of the courts below refusing to set aside an exparte decree.

(2) The facts are these : The respondentplaintiff brought a suit for ejectment and arrears of rent against the applicantdefendant in the court of

Munsiff, R. S. Pura. The defendant was summoned and appeared in the court on 14111&71 accompanied by his counsel who took time to file the

written statement. The written was not, however filed on several subsequent hearings upto 2011972 when the counsel for the defendant reported

no instructions"". As such as the court took exparte proceedings against the defendant. Thereafter the case was adjourned for recording exparte

evidence, first to 921972 and then to 242J972 and eventually an exparte decree was passed against the defendant on 331972. On 2931972 the

defendant filed an application under O. 9 R. 13 C. P. C, for setting aside the exparte decree alleging that on account of the declaration of

emergencyreference apparently being to the emergency declared in December, 197 due to the outbreak of hostilities between India and Pakistan,

he had gone to the Punjab Stare where he was taken ill and could not move about for 2/3 months, he could not be present in the court during the

relevant time and could be able to know about the exparte decree only a few days before the application when he returned to his village The

plaintiff contested the application. On consideration of the evidence the trial court came to the conclusion that the defendant was in his village from

1621972 to 1231972 and even after, working on a Govt. Drug farm and that his allegation about ailment was false and madeup and dismissed the

application holding that no sufficient cause was made out for nonappearance by the defendant. The court did not, however, return any clear finding

as regards the allegation that defendant had gone over to Punjab earlier. By an indentical prescription the learned Subordinate Judge (C J. M)

Jammu dismissed the appeal filed before him. Hence this revision.

Order 9 Rule 13 reads :

In any case in which a decree is passed exparte 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 herring 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

(3) The question is whether in case, like the present, where the defendant appears and then absents himself not only on one date but on several

successive date?, to which the hearing is adjourned, suiting first in the case being set exparte and then an exparte decree being passed against him,

the requirements of this rule would be satisfied entitling the defendant to an order to set aside the ex parte decree, if he shows sufficient cause for

his nonappearance on the date when the exparte proceedings were first taken against him and assigns no such cause for his nonappearance on the

subsequent dates, to which the hearing was adjourned, until the exparte decree was passed. The learned counsel for the petitioner says, 'yes'. In

fact that is the sheetanchor of his arguments in the present case. He has even tried to support this view by a decision of the Lahore High Court in

Krishan Lal Malhotra V. Madan Lal (A. I. R J950 Lahore, 43). I will come to this decision later Here it is enough to say that the view advanced

by the learned counsel is not a correct view of the law as set out in O. 9 R. 13.

(4) On the language of O. 9 R. 13 a defendant is entitled to an order to set aside an exparte decree if he satisfies the court ''that he was prevented

by any sufficient cause from appearing when the suit was called on for hearing."" The expression 'hearing' has reference to the hearing which takes

place in the absence of the defendant leading up to the passing of the exparte decree. Such hearing may be concluded in one day or be spread

over a number of days to which the case is adjourned from time to time by the court to complete the hearing. Where, therefore, the hearing is

extended over a number of days, to which the case is adjourned from time to time until the exparte decree is passed, the defendant must, on the

terms of this rule, explain his absence to the satisfaction of the court on all these days before he may be able to claim an order for setting aside the

decree, Holding otherwise would be doing violence to the language of the Rule. That apart, it might lead to absurd results Take, for example, a

case in which, during its progress, the defendant is unable to appear in the court on a certain date on account of the sudden illness of his son and

the case is set exparte against him and thereafter further proceedings are taken, which take, say, two years, during which the defendant had no

apparent difficulty to put in his appearance, but in order to exhaust the plaintiff or, at any rate, to delay the matter, he watches the proceedings from

a distance till the exparte decree is passed and then turns round and says that the exparte decree should be set aside because he was prevented by

a sufficient cause from appearing in the court when the exparte proceedings were first taken against him. Would it not be placing a premium on the

defendant's own wrong, if the court were to accept this plea and set aside the exparte decree ? Would it not be given an edge to the defendant

over the plaintiff ? Does it mean unfairness and injustice to the plaintiff ? Does it not make the concept of fair trial, which the rules of procedure are

designed to achieve, illusory for the plaintiff ? With these results in view, it is unimaginable that the Legislature should have intended to make the

justifiable absence of the defendant on the day, when exparte proceedings were first taken against him, alone as a sufficient cause for setting aside

the exparte decree.

(5) Again it may be stated that the legal effect of the setting aside of an exparte decree is that the parties are relegated to the stage, at which the

case stood, when the defendant absented himself. It is, therefore, reasonable to bold that the defendant should explain his absence right from that

stage upto the passing of the decree may be set aside

(6) It is true that the defendant has right to participate in proceedings, even after exparte proceedings are taken against him without the previous

proceedings being interfered with, but that is so only so long as the proceedings do not end in an exparte decree. Once an exparte decree is

passed, the inter mediate proceedings get tied up at both ends with exparte order at the one end and the exparte decree at the other, leaving no

room for them to get loosened unless the whole chain is broken a corollary it follows a defendant must be able to break the whole chain or in other

words show sufficient cause for his absence from the beginning to the end before he may be entitled to claim that the exparte decree be set aside.

(7) Viewed from any angle, the legal position therefore is that, in an application under O. 9 R. 13 C. P C the defendant must not only establish

sufficient cause for his non appearance on the date, when ex parte proceedings were first taken, but he must also establish such cause for his non

appearance on the subsequent dates, to which the case is adjourned for hearing, till the exparte decree was passed, before he may be declared

entitled to an order to set aside the decree.

(8) Let me now deal with the decision in Krishan Lal V. Madan Lal (A. I. R 1950 Lab. 43) cited by the learned counsel for the petitioner. The

facts of this case were these : On 14th June, 1947, Madan Lal instituted a suit for damages and for the recovery of rent against Krishan Lal and

others in the court of SubJudge, Lahore. The defendants filed the written statement and the plaintiff was directed to file replication. The case was

fixed for this purpose on 8th October, 1947. On that date the defendants were not present in the court nor also their counsel. Exparte proceedings

were ordered to be taken and the case was adjourned for evidence from time to time until it was transferred under some administrative orders to

another court at Lahore. The court, to which the case was transferred, recovered the evidence exparte without informing the defendant of the

transfer and eventually also passed an exparte decree on 1121948. On 2821948 the defendant, Krishan Lal, filed an application under O. 9 R. 13

for setting aside the exparte decree. The trial court found that the petitioner had no sufficient cause for absence on 8101947 and dismissed the

application On appeal the Lahore High Court set aside the exparte decree and the proceedings taken against the defendant since transfer, replying

on a Rule of the court which provided for notice regarding transfer being given to the parties, where a case was transferred by an administrative

order from one court to another. The ratio decidendi was that no notice was given to the defendant after transfer, as required by the High Court

Rules, and not that he had justifiable cause for nonappearance from an intermediary stage, though, as a fact, it was found that there was sufficient

cause for the subsequent nonappearance of the defendant. This is what was made clear by the court observing :

There is nothing in the Code of Civil Procedure to prohibit a defendant against whom a case is proceeding exparte, to join at any hearing of the

case and start from that stage. This is, however, quite different from saying that after the case is finished and has resulted in a decree, a defendant

can insist on the reopening of the proceedings from the intermediary stage for which he had established ""sufficient cause"" for his absence. This

would lead to useless complications and a case may never end.

(9) The court, however, added:

Where ex parte proceedings have commenced in a proper manner and culminated in an ex parte decree, the defendant must show 'sufficient

cause' for his nonappearance on the date when the exparte proceedings were first taken.

and observed at the end that the above was the general rule.

(10) It is on the latter observations that emphasis was laid by the learned counsel for the petitioner to support his contention that, in order to entitle

a defendant to an order to set aside an exparte decree, he need only establish sufficient cause for his absence on the day when exparte

proceedings were first taken against him. Taken alone, these observations may perhaps convey that sense but they cannot be torn out of their

context in the preceding observations, which when read with these observations, unmistakably suggest that the defendant must prove sufficient

cause for his absence both at the beginnings when the case was set exparte against him, as also at the subsequent stage, when the hearing was

completed and an exparte decree was passed. This is, as the court put it, the general rule. In any case if the judgment was construed as laying

down that the defendant need only show sufficient cause for his non appearance on the date, when the exparte proceedings were first taken, to

entitle him to an order for setting aside the exparte decree, I would respectfully record my dissent from it on the basis of the observations made

earlier in this judgment regarding the correct position of the law based on O. 9 R. 13 C. P. C.

(11) In these circumstances, even if it were assumed, as the learned counsel for the petitioner put it, that on the facts found by the lower courts the

defendant had established sufficient cause for his nonappearance on the date, when exparte proceedings were first taken against him, it cannot be

held that he has established sufficient cause for his absence in terms required under O. 9 R. 13 when no such cause was admittedly established by

him for his absence at the later stage of the proceedings culminating in the passing of the exparte decree.

(12) Towards the end the learned counsel for the petitioner faintly suggested that the petitioner had engaged a counsel and he had reason to believe

that the counsel would look after his case in his absence which prevented him for attending the court and that this was a valid ground on which the

exparte decree may be set aside. I find it difficult to agree with this contention. By engaging counsel a party to a suit, is not relieved of his duties

and obligations in the matter. In any case the negligence of a party's counsel cannot be a ground of claim or application against the other party,

because, on the principle that the principal is responsible for the acts of his agent as much as for his own, the negligence of the counsel is the

negligence of the party himself.

(13) For the reasons I find no force in this revision petition which is hereby dismissed. In the peculiar circumstances of the case, I would, however,

direct that the parties will bear their own costs in this court as also in the courts below.