Sharad Manohar, J.
1. Both the appeals arise out of the same suit. A.O. No. 416/1982, however, arises out of the order passed by the trial Court refusing to set aside the ex parte decree passed against the present appellant, who was the defendant in the suit, while First Appeal No. 710/1982 is filed by him, by way of abundant caution, against the ex parte decree itself challenging the same on merits.
As will be presently pointed out, the appeal from order has got to be allowed because the learned Judge has dismissed the defendant's notice of motion for setting aside the ex parte decree without really applying his mind to the facts and equities of the case. Moreover, he has confused and jumbled between the application for setting aside the ex parte decree and the merits of the defence. I am stating here that since I am allowing the appeal from order and setting aside the ex parte decree passed against the defendant, it is unnecessary for me to admit First Appeal No. 710/82 and to appreciate the reasoning of the learned Judge while passing the ex parte decree. But I make it clear that if it was necessary, I would have not hesitated to admit First Appeal No. 710/1982 because I am prima facie satisfied that the decree is susceptible to challenge even on merits.
2. It is unnecessary to state the facts of the case which are already stated in the judgment of the learned trial Judge at length. It is enough here to state that the suit out of which the present appeal arises, namely, Summary Suit No. 2166/62 was filed by the respondent-plaintiff against the defendant for recovery of a sum of Rs. 10,299/- alleging that the two sums, namely Rs. 8,000/- and Rs. 1,000/- were lent and advanced by the plaintiff to the defendant on 8-3-1961 as a friendly loan. Contention was that two debit vouchers, for having received the said amounts, were signed by the defendant. The plaintiff's contention further was that the defendant had agreed to pay interest at the rate of 1 per cent per month on the said amount of Rs. 9,000/-. It is because of the said vouchers purporting to have been signed by the defendant for Rs. 8,000/- and Rs. 1,000/- respectively that the suit was filed by the plaintiff as a summary suit for recovery of the said amount with interest.
After the suit was filed as a summary suit, the defendant file this return and hence summons for judgment was taken out by the plaintiff. The Court was satisfied that the defence set up by the defendant did disclose a genuine arguable defence for the defendant. Hence, the Court gave an un-conditional leave to the defendant to defend the suit. After this order, an order was passed by the Court transferring the suit filed as the summary suit to the list of long causes. It is on this account that the suit remained marking time and waiting in the queue of long-cause suits for a full period of 20 years in the City Civil Court.
But soon after the defendant received un-conditional leave to defend the suit, the learned Advocate appearing for the defendant, Shri T.R. Desai was elevated to the bench of the City Civil Court. It does appear that the defendant had information about this fact. It is, however, clear that the defendant did not choose to appoint any other person in place of Shri T.R. Desai at any time. By the time the suit reached hearing, Shri T.R. Desai had already ceased to be a Judge and has started practising in the Court once again. However, it is the case of the defendant that Shri T.R Desai had handed over the papers in relation to the suit to his Junior Shri V.B. Mehta. As will be presently pointed, this does appear to be the position. The defendant, therefore, felt secured that the suit filed against him by the plaintiff would be looked after by said Shri V.B. Mehta.
The suit appeared on the Board for hearing on 25-2-1982 and on account of want of time, it was adjourned firstly to 8th March and thereafter to 20th March and from 20th March to 30th March, 1982. On 30th March it reached hearing at about 4.00 p.m. It is not disputed before me that the Board showed Shri T.R Desai to be the defendant's Advocate. On that date, the plaintiff and his Advocate were present, but no one remained present on behalf of the defendant. A notice purporting to have been addressed by the plaintiff's attorneys Haridas & Co., to said Shri V.B. Mehta informing him about the date of the suit, was produced by the plaintiff's learned Advocate before the learned Judge. Upon this production, the learned Judge was satisfied that the defendant had no sufficient reason to remain absent. He was also satisfied that the suit did not lose it summary character merely because un-conditional leave was granted by the Court to defend the suit. The learned Judge, therefore, did not require the plaintiff to go into the witness box to prove his case. He did not even require the plaintiff to produce any document. He just proceeded to hold that the defence was disproved and on this basis he decreed the plaintiff's suit with costs.
3. On this fact about the ex parte decree, Haridas & Co., attorney for the plaintiff, gave a notice to the defendant. It was at that time that the defendant learnt that the suit was ever on Board. He tried to contract Shri T.R Desai who was already on record and who, according to the defendants, was to look after the suit, although for some time when he was not in charge of the litigation on behalf of the defendant. According to the defendant, Shri T.R. Desai had gone out of station and hence, he engaged his present learned Advocate, who took search of the Court papers and thereafter took out a notice of motion for setting aside the ex parte decree. In the affidavit in support of the notice of motion, he stated the above mentioned facts and tried to point out to the Court that in the circumstances narrated by him, it would not be said that his absence on the date 30-3-1982 was without sufficient cause.
4. The notice of motion was heard by the learned Judge himself. However, the learned Judge dismissed the notice of motion stating that he was not satisfied about any sufficient cause being therefor the defendant to remain absent on the date of hearing of the suit. But this is not all. The learned Judge also observed that according to him, the suit did not cease to have its character of a summary suit merely because his predecessor had chosen to given unconditional leave to defend the suit. A large portion of the judgment dismissing the notice of motion is devoted by him to justify the merits of the ex parte decree passed by him. But after holding that the decree was a very legal and correct decree on merits, he further proceeded to hold that the reasons given by the defendant for explaining his absence on the date in question were not satisfactory. By his order dated 29th June, 1982, therefore, the learned Judge dismissed the defendant's notice of motion with costs.
5. When the appeal against the order dismissing the said notice of motion came up for admission before me, I was prima facie of view that the entire reasoning of the learned Judge, on the question of justification for an ex parte decree, reflected certain confused thinking. I felt that even if it was to be held that the defendant could not justify his absence on 30-3-1982 and hence could not justify the notice of motion for setting aside the ex parte decree, still the decree itself was patently bad on merits, because the decree had proceeded upon the assumption that the suit does not cease to be a summary suit merely because un-conditional leave is granted by the Court to the defendant to defend the suit. The learned Judge has made a very categorical and unequivocal observation about the legal position in this behalf and I was of the opinion that at least prima facie the statement of law was incorrect. If that was so, the Court should not have allowed the plaintiff to go away with the decree merely because the suit filed by him was a summary suit. It is not as if the suit is on a negotiable instruments. The suit is filed on tow debit notes which are not negotiable instruments by themselves. This means that there was no presumption of consideration merely because the debit notes were signed by the defendant. When the learned Judge observed that the suit did not cease to be a summary suit merely because un-conditional leave was granted, what he meant was that the onus of proving want of consideration which rested in the case of negotiable instruments in summary suits upon the defendant, continued even though the summary suit was not based upon any negotiable instrument. I felt that the proposition of law was basically erroneous. I, therefore, directed Mr. Kamat, the learned Advocate for the defendant to take instruction from his client whether he would be prepared to file an appeal against the ex parte decree itself, which decree appeared to me to be extremely vulnerable. Taking this guidance from this Court, Mr. Kamat did file the above mentioned First Appeal No. 710/1982 in this Court. I gave notice of admission in respect of both the appeals. However, when the notices came up for hearing, no one appeared on behalf of the respondent- plaintiff to justify the decree passed by the learned trial Judge and hence, I had no other alternative but to admit both the appeals.
6. When the appeals came up for final hearing before me today, it appeared that Haridas and Co., had filed appearance on behalf of the respondent plaintiff in appeal from Order No. 416/1982, but, so far as the First Appeal No. 710/1982 was concerned, the said attorneys did not care as much as even to file appearance and when the appeals reached hearing before me today, no one appeared on behalf of the respondent in any of the appeals. Both the appeals have, therefore, to be heard ex parte.
To my mind, the appeal from order itself succeed and hence it is not necessary to formally admit the first appeal and to delay the hearing of the said appeal. Since, I am allowing appeal from Order No. 416/1982, I am giving liberty to the appellant to withdraw his First Appeal No. 710/1982 although I am of the opinion that the appellant has got quite a strong case even on merits.
7. Coming to the question as to whether the ex parte decree should be set aside or not, the facts which are of tell-tale character are the following :
(a) The Vakalatnama filed by Shri T.R Desai continued to remain on the proceedings in spite of the fact that for some period between the date of the suit and its actual hearing, he was not in practice at the bar at all ;
(b) The suit was very much alive at the time when Shri T.R. Desai had come back to the bar;
(c) The fact that Shri T.R. Desai had asked his junior Shri V.B. Mehta to conduct the litigation on behalf of the defendant must be held to be established by virtue of the fact that even the plaintiff had himself given the notice on the date of hearing to Shri V.B. Mehta and not to Shri T.R. Desai.
(d) If the name of Shri T.R. Desai continue to appear on the Board, it was the duty of Mr. Desai to given information to the defendants about the progress of the suit. The fact that neither Shri Desai nor Shri Mehta had given any information to the defendant about the progress of the suit is borne out by the affidavit of the defendant and there is absolutely no reason why the defendant's say in that behalf should not be believed.
The learned Single Judge has expected the defendant to file Desai's affidavit as regards the above. To my mind, the expectation is a misplaced one. It does appear that there was negligence, on the part of the Shri Desai to some extent and of Shri Mehta by and large, in the matter of attending to suit on behalf of the defendant. The fact that it was not Mr. Desai who was looking at the matter but Mr. Mehta was looking after it is borne out by the fact that the plaintiff's attorneys have given notice of the date of hearing to Shri Mehta and not to Shri Desai. Still the name that appeared on the board was that of Shri Desai and not that of Shri Mehta. It is, thus, clear that between the two Advocates, the defendant was left in the lunch and nobody attended the matter on his behalf. The defendant had produced ponderous material before the Court and being satisfied with the same, the Court had given un-conditional leave to the defendant to defend the suit. It is, therefore, inconceivable that he would not be interested in defending the suit.
8. Reading the entire judgment, an impression is left on the mind that the learned Judge was of the view that the decree passed by him was above reproach and his reading of the law was unassailable. The learned Judge does not seem to have taken into consideration the various aspects of the matter which rendered the likelihood of defendant's negligence very meagre. I am satisfied, after reading the affidavits filed by the parties, that the defendant has certainly made out the case of the existence of sufficient reason for him to remain absent on the date of hearing of the suit. It was only with this end in view that the learned Judge was called upon to examine the notice of motion and not the merits of the case. But the learned Judge has started his judgment by firstly justifying the merits of the case and has later on dealt with the question of sufficient cause for setting aside the ex parte decree. To my mind, this approach is basically erroneous.
9. The appeal is, therefore, allowed. The ex parte decree passed by the learned Judge against the defendant is hereby quashed and set aside and the entire suit is remanded to the trial Court for disposal according to law. However, in view of the facts that the learned Judge has taken a strange view about the position relating to summary suit and in view of the fact that the present judgment may be, according to the defendant, unpalatable to the Court, I direct that the suit should be heard by some other learned Judge of City Civil Court.
This entire appeal from order was occasioned by virtue of the mischievous attitude taken by the plaintiff. After going through the previous orders passed by the Court and the affidavits, an impression is left on the mind of the Court that the litigation instituted by the plaintiff may not perhaps be a very honest litigation. The very fact that in spite of the notices of admission given to him and in spite of the fact that appearance was filed on his behalf in appeal from Order No. 416/1982, no one appeared on behalf of the respondent either at the time of hearing of these appeals, shows that the respondent is not inclined to abide by the reasonable directions of this Court. A great loss is also caused to the defendant by virtue of the fact that he was required to file First Appeal No. 710/1982. Although I have allowed the appellant to withdraw the first appeal and although thereby the appellant will be entitled to a refund of 2/3rd of the Court fee paid by him, the fact remains that substantial monetary loss is required to be visited upon the appellant for no fault on his part. The respondent shall, therefore, pay the appellant's costs which are quantified at Rs. 750/-. So far as the first appeal is concerned, leave is given to the appellant to withdraw the same and the appellant shall be entitled to get refund of the 2/3rd of the Court fees paid by him for the same. The payment of costs awarded to the appellant in this appeal shall be a condition precedent for the respondent-plaintiff to proceed with his suit in the trial Court.