1. This is an appeal against the order passed by the learned City Civil Court Judge dismissing the notice of motion taken out by the appellant to Bet aside an ex parte decree passed against him in a summary suit under the provisions of Order 37.
This notice of motion was rejected on the ground that the conduct of the defendant throughout the proceedings in the trial Court showed that he was only bidding for time and that he was really not prevented from taking part in the proceedings by any genuine or sufficient reason. The learned Judge has also found that the defendant was disposing of his properties presumably with a view to make the execution of the decree more difficult. He was in fact not satisfied with the 'bona fides' of the defendant.
2. This summary suit was filed on 13-11-1954. In this suit the plaintiff claimed Rs. 13,000/- on a writing executed on 7-8-1954 and two dishonoured cheques. Summons was served on the defendant at Byadgi and on 11-4-1955 he appeared by Mr. Malimath. It would appear that there was some talk between the defendant on the one hand and Damodar and Shivappa on the other and some negotiations for compromise were set afoot.
Whether these negotiations began at the instance of the plaintiff or the defendant is a matter en which the parties are not agreed. The plaintiff alleged that the negotiations commenced at the initiative of the defendant himself and since the defendant did not come to Bombay any time to show his bona fides in the matter the plaintiff rejected the offer conveyed by the two persons.
Summons for judgment was served on the learned Advocate for the defendant on 2-7-1955. Mr. Malimath then communicated to his client the fact that the summons for judgment had been served on him. Thereupon Mr. Malimath received a letter from his client referring to the negotiations for compromise and naturally Mr. Malimath communicated the information about these negotiations to the learned Advocate for the plaintiff.
The learned Advocate then replied that the negotiations had been commenced by the defendant himself and that, since the defendant had not shown diligence in the matter, he was not interested in those negotiations any longer. This was communicated by Mr. Malimath to his client in due course. On 28-7-1955 the case was set down for judgment.
Mr. Malimath applied for adjournment on instructions, but the adjournment was relesed and an ex parte decree was passed. Mr. Malimath in due course communicated the news about the passing of the decree to his client. On 27-8-1955 a notice of motion was taken to set aside the ex parte decree, but the notice of motion was vitiated by an irregularity in that it was not addressed to anybody.
On this technical objection it was rejected on 3-10-1955. On the same day Mr. Malimath took out another notice of motion for setting aside the ex parte decree. During the hearing of this notice of motion, the defendant was called upon to make an affidavit as regards the properties which he had alienated in the meanwhile. He made his affidavit on the 14th of October and on the 7th of November the notice of motion was dismissed. These, shortly stated, are the facts giving rise to the order under appeal.
3. Mr. Malimath contends that, in dealing with the position of his client, it would be necessary to remember that the litigants in the mofussil are not familiar with the procedure prescribed under Order 37, and that they generally assume that in every suit instituted in a civil Court it is their right to defend themselves against the claim.
Undoubtedly a large number of litigants in the mofussil may not be familiar with the rigorous provisions of Order 37 and some indulgence may, in a proper case, have to be shown if the litigant's conduct is explicable on the basis that he was not aware of the consequence and the risk which he can by not taking proper steps as required under Order 37. But the difficulty experienced by the litigants in the mofussil in this connection cannot be allowed to be exaggerated.
In the present case, despite all the efforts made by Mr. Malimath to contact his client and inform him about the progress of the suit and his obligations under Order 37, the defendant chose to be negligent in the discharge of his duties. On his behalf Mr. Malimath contends that between the 17th of May and the 15th of July 1955 the plaintiff was constantly on tour in search of bridegrooms for his grand-daughters.
On the record it is not clear why this old man of 75 should have been exclusively responsible for finding out grooms for his grand-daughters. It is an undivided family and Mr. Malimath is not able to deny the suggestion made by the respondent's learned Advocate before me that there are grown-up sons and even grown-up grandsons in the family who could have easily looked alter the arrangements for the marriage of the grand-daughters of the defendant.
Therefore, the excuse set out by the defendant that he was constantly on the move between the 17th of May and 15th of July and knew nothing as to what was happening in Bombay in the suit is too fantastic for words. Again, at the crucial time between the 27th of July and the 7th of August the defendant is alleged to have been ill and Mr. Mali-math describes his illness as having taken a serious turn on the 24th of July.
The cause of illeness is alleged to be malaria and bronchitis. Conceivably even malaria and bronchitis can make the position serious for an old man of 75 years; but then again, it is by no means clear that the old man need have been left exclusively in charge of all anxiety about this litigation. That is another aspect of the matter which is very much against Mr. Malimath.
Besides, even if I were inclined to accept this tall claim that after the 21st of July for one or two weeks the defendant was ill, according to Mr. Mali-math he recovered on the 7th of August, and nothing was done by him until the 27th of August. It was on this date that the notice of motion was taken out. Mr. Malimath is driven to say that his client had to take steps to come to Bombay and had also to consider the proposal for negotiations.
It is hardly necessary to deal with this argument, seriously. Therefore, in my opinion, the conduct of the defendant which has been characterised by the learned trial Judge as not being bona fide, fully justified the order passed by the learned Judge dismissing the second notice of motion taken out by Mr. Malimath.
4. Mr. Malimath seriously contended that the claim is based upon a document whose genuineness he disputes. The respondent's learned Advocate was prepared at the hearing before me to have the suit set down for hearing on the merits under Order 37 provided the defendant was willing to bear the costs of the suit in any event and to deposit the claim amount within a specified time.
Mr. Malimath's client was not able to comply with this suggestion. On the merits, a weaker case in similar circumstances it is difficult to imagine. That is why I think that, even if I were to be indulgent to the defendant on the theoretical ground urged by Mr. Malimath, his conduct through these proceedings and the fact that he has been alienating properties in the meanwhile clearly justifies the view taken by the learned Judge.
5. In the result, the appeal fails and must be dismissed with costs. The application for injunction is rejected and the rule is discharged with coats.
6. Appeal dismissed.