1. This is an application for revision filed on behalf of defendant 1--Tek Bahadur Bhujal under Rule 36 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, challenging the order of the learned Additional Deputy Commissioner, Khasi and Jaintia Hills, dated 20-7-51 affirming the 'ex parte' decree passed by the Assistant to the Deputy Commissioner on 17-3-50 in Suit No. 38/S of 1946 of the Court of the Assistant to the Deputy Commissioner, at Shillong.
2. The matter arose out of a suit for partition of certain assets belonging to an alleged joint family concern known as Gurkha Dairy Firm including certain lands in the suburb of the town of' Shillong and for rendering of accounts. The original suit was filed by Debi Singh Bhujel against Tek Bahadur Bhujel and two others and the suit was registered on 10-9-46. It was undoubtedly a protracted litigation and some witnesses were examined on commission for the plaintiff and the depositions recorded on commission were returned on 4-4-49. Since then no date has been fixed for hearing and numerous adjournments were granted on the prayers of the parties and mostly of defendant 1 who alone seems to have contested the suit.
The order dated 20-9-49 passed by the Munsiff indicates that the defendant (the word defendant is used for defendant 1) was required to file a full and complete account of the Gurkha Dairy Firm from 1-1-43 to 26-
5-46 supported by vouchers as asked for by the plaintiff, and 11-11-49 was the date fixed for submitting the accounts etc. as ordered. The defendant went on praying for time which was granted. On 21-1-50, the defendant filed a statement of account showing only 'broad items of expenditures etc. The plaintiff wanted a 'detailed account and the account book etc. to be satisfied with the account for settling the matter' and time was granted up to 6-2-50 to the defendant to file account from 1-1-1943 till the date of the institution of the suit. On 6-2-50, defendant prayed for further time and time was given up to 21-2-50 for filing the account.
On 21-2-50, none of the parties took any steps and the lawyers were also absent and the case was adjourned till 16-3-50 but on that date too the defendant made a further prayer for extension of time for filing of account on the ground of his illness and the plaintiff opposed the same. Thereupon, the learned Munsiff deputed his Civil Office Assistant to verify the statement of the defendant and submit a report The Civil Office Assistant made a report to the effect that the defendant was seen at a certain place with a woman of doubtful repute and that he complained to the Civil Office Assistant that he was suffering from dysentry. On that report the learned Munsiff rejected the defendant's petition for time and fixed the case for 'ex parte' hearing on 17-3-50 that is on the day following. It appears from the order sheet that a previous order was passed by the Munsiff on that very day fixing the case for 17-3-50 for orders only and that passage has been penned through and the new orders substituted as indicated above. The suit was taken up for 'ex parte' hearing on 17-3-50 and the plaintiff alone was examined. The learned Munsiff relied on the statement of the plaintiff and the depositions of two of the plaintiff's witnesses who were examined on commission before and decreed the plaintiff's suit for half of the landed and other immovable properties of the Gurkha Dairy Firm and ordered for partition by metes and bounds by the Nazir of the Court and other assets, income and goodwill of the firm of the Gurkha Dairy Firm.
This may be said to be a preliminary decree passed in a suit for partition. On 21-3-50 the defendant (No. 1) filed a medical certificate in support of his prayer for adjournment as made on 16-3-50 and thereupon the learned Munsiff passed an order on the said application that the suit had been disposed of on 17-3-50. An appeal was preferred in the Court of the Deputy Commissioner, Khasi and Jaintia Hills against the 'ex parte' decree passed by the learned Munsiff and the learned Additional Deputy Commissioner by his order dated 20-7-51 dismissed the appeal and upheld the preliminary decree passed by the learned Munsiff. This revision petition is against this appellate order.
3. The validity of the decree has been challenged on three grounds. First, that the learned Munsiff acted illegally in disposing of the case 'ex parte' on 17-3-50, second, that the decree could not be supported by, the evidence
on record and third, that proper court-fee has not been paid in the suit. The petitioner, Tek Bahadur Bhujal made further allegation that the learned Munsiff had previously fixed the date of the 'ex parte' hearing for 21-3-50 but had subsequently charged the date to 17-3-50 without the knowledge of the defendant or his pleader. I may say at the outset that there is dearth of sufficient materials on the record to substantiate this allegation, though there is something to show that the Munsiff had changed his mind and there was an over-writing as to the date and that was initialled by the Munsiff.
4. I am going to dispose of the matter on the first objection raised on behalf of the petitioner. It is clear from the order sheet that 16-3-50 was not the date fixed for hearing of the suit but it was only for production of account by defendant 1 for settling the matter as indicated by the order of 21-1-50. The learned Munsiff was quite within his rights in dismissing the application for further extension of time for production of account if he did not believe the prayer to be bona fide but that it did not entitle him to fix the next date for an ex carte hearing the production of accounts being for the purpose of settlement. Both parties should have got sufficient notice as to the date fixed for hearing so that they might have been present with their witnesses and have them duly summoned if they wanted to, since the chance of settlement has vanished. An ex parte hearing is provided only when one of the parties is absent on the date of hearing as indicated in Order 9, or under Order 17, Rule 2, Civil P. C. 16/3/50 was not the date fixed for hearing of the suit nor for the appearance of the parties as such. The result of the non-production of the accounts would have been a presumption to the effect that there will be no settlement or there was no account or in case the accounts were produced they would have gone against the defendant. In this case, it could not be said to be an act necessary to the further progress of the suit to attract the provisions of, Rule 3, Order 17, Civil P. C. In this view, the fixing of a date for an ex parte hearing in the absence of one of the parties and under the present circumstances was improper.
5. There was a further objection on behalf of the petitioner as to sending the Civil Office Assistant for enquiring as to the truth or otherwise of the statement made by defendant 1 as improper. The learned Additional Deputy Commissioner seeks to bring the report of the Civil Office Assistant as a report of the Commissioner under Order 26, Rule 9, Civil P. C. With due deference to the Additional Deputy Commissioner, I must say that Order 26, Civil P. C. had no application to sending a clerk or a peon for investigating into any of the allegations made by any of the parties to a suit. As a matter of fact, this practice should be decried if prevalent and the report of the Civil Office Assistant had no evidentiary value and that could not be taken into account. The learned Munsiff put much weight on this report and his decision seems to have been mainly influenced by the fact that defendant 1 was in a place of notoriety. This was extraneous to the subject matter of the suit and should have had no influence in making a decision in fixing a date for hearing of a suit particularly when the subject matter of the litigation was valued at a lakh of rupees.
6. Mr. K. Chakravarty for the plaintiff-opposite party has contended that whether there was sufficient reason for an order for an ex parte hearing cannot be agitated in this Court and has relied on two decisions,--'M. Hummi v. Aziz Uddin', AIR 1917 All 475 (A) and--'Raj Chandra Dhar v. K.D.O.C. Ray', AIR 1924 Rang 137 (B). As a matter of fact, these cases have no special bearing on the facts of this case. Here, the defendant-petitioner did not try to show that there was sufficient reason for his absence, but the contention on his behalf has been that the order for an ex parte hearing was illegal. I have already set out the grounds why I consider the order for the ex parte hearing to be improper. It has been urged on behalf of the plaintiff-opposite party that the suit could have been disposed on 16/3/50 if the Munsiff so liked because of the non-compliance of the order of the Munsiff by defendant 1 as to the production of account. I must say that this contention has no substance and the suit could not have been disposed of on that very day as the parties were not required to be present with their evidence for hearing of the suit on that date. I accept that it is only the spirit of the Civil Procedure Code that applies in this case, and even then my decision remains the same.
7. In the above circumstances, I hold that
the order of the learned Munsiff passed on
16/3/50 directing the ex parte hearing was
improper and the ex parte decree passed on
17-3-50 in pursuance of that order is untenable.
The ex parte decree and the appellate order
are set aside. I accordingly allow the appeal
and direct that the matter should go back to
the Court of the Assistant to the Deputy Com
missioner who should give both parties fresh
chance for producing their witnesses or such
evidence as they consider necessary and re-hear
the matter as provided by law. In view of the
fact that the defendant 1 has not been diligent
in the Court below, I make no order as to
costs. Let the records go down immediately
and the hearing of the suit should be expedited
as far as possible.