Union of India vs Subbammal

Balakrishna Menon, J.—The Defendant, namely, the Union of India represented by the General Manager, Southern Railway, is the Appellant. The suit is for damages for short delivery of goods booked for transportation from Delhi to Kochaveli at Trivandrum. The Defendant raised various contentions in its written statement. As many as 7 issues were raised in the suit. Issues were settled on 20.3.1979 and after two or three adjournments, the case was posted for trial on 7.11.1979. On that day, the Court below has passed the following judgment:

Filed Exts.A-1 to A-3. The Defendant is ex parte. The plaint claim is proved by affidavit. The suit is hence decreed to recover Rs. 26,797.85 together with interest at 6% on the principal amount from date of suit and also the costs from the Defendant and his assets.

The order sheet in the suit contains the following entry dated 7.11.1979:

Plaintiff and witnesses present. Defendant-1 Union of India absent Counsel for Union present. Defendant applies for adjournment. Rejected. The Defendant is hence set ex parte. The Plaintiff files affidavit.

Rule 5 of Order XX, CPC requires the Court to state its finding or decision with the reasons therefore upon each separate issue in suits where issues have been framed unless the finding upon any one or more of the issues is sufficient for the decision of the suit. In the present case, 7 issues have been framed on 20.3.1979. The judgment of the court below does not give findings on the issues framed in the suit. Subramonian Poti, J., (as he then was) in Chari Vijayan v. Achuthan Vasu 1912 KLT 849 stated that:

The attention to the pleadings and evidence in a case by the Court even where the Defendants do not appear and they are ex parte shows a healthy trend. In many cases, the Defendants may be enabled to appear not because ''they have no cause to defend but because they may enabled to face a litigation primarily for want of funds. The Courts owe a duty to weigh the merits of the case even when there is such non appearance." The judgment in the present case is unsatisfactory even as an ex parte judgment, for the absence of findings on the issue in the suit.

The Defendant was represented by counsel and the counsel was present in court on 7.11.1979. The entry in the order sheet shows that the Plaintiff and his witnesses were present. On the issues framed in the suit, the trial has to commence on the Plaintiff�s side. The Defendant�s counsel had not reported no instructions nor is there anything to show that he declined to participate in the trial. In these circumstances, the Court below was clearly wrong in setting the Defendant ex parte and passing an ex parte judgment.

We therefore set aside the judgment and decree of the Court below and remand the case to that court for trial and disposal of the suit in accordance with law. The suit is of the year 1978. The Court below is directed to expedite the trial and dispose of the suit before the end of the year 1988.

The appeal is allowed as indicated above. The parties will suffer their respective costs. The court-fee paid on the Memorandum of Appeal will be refunded the counsel for the Appellant. The parties, will appear before the Court below on 18.7.1988. Transmit the records to the lower Court forthwith. Issue carbon/photo copy of this judgment to counsel on both sides.