1. This Miscellaneous Second Appeal under Order 43, Rule 1 (u) of the C. P. C. 1908, ('the Code') is directed against the order dated August 17, 1978 of the Court of Civil Judge at Gulbarga ('the Appellate Court') in an appeal, setting aside an ex parte decree dated February 24, 1978 of the court of Munsiff, Gulbarga ('the trial Court') in a suit and remitting the suit to the trial Court for- further trial and disposal.
2. The trial Court had set down the suit, out of which the present appeal arises, for trial on August 22, 1978. On that day, it received a telegram from counsel for defendants, who was away from town. By that telegram, the counsel had applied for adjournment of the trial' on the ground that he was ill. The trial Court without granting the adjournment proceeded with the trial of the suit in the absence of the defendants' counsel and the defendants and passed an ex parte decree.
3. The defendants preferred an appeal against the ex parte decree. The appellate Court heard the appeal and found that the Trial Court was not justified in proceeding- ex parte against the defendants, when the illness of defendants' counsel pleaded as a ground of adjournment, was not dispute either by the plaintiff or his counsel. The appellate Court, therefore, took the view that the trial Court should not have proceeded ex parte against the defendants and made an ex parte decree against them. Consequently, it allowed the appeal, set aside the ex parte decree. and remitted the suit to the trial Court for further trial and disposal.
4. From the order of the appellate Court, the plaintiff has preferred this second appeal.
5. Shri M. M. Jagirdar, learned counsel for the appellant plaintiff, contended that while it was within the power of the appellate Court to set aside the ex parte decree appealed against on the ground that the evidence adduced by the plaintiff was not sufficient to justify the decree, it was not within its power to allow the appeal on the ground that the Trial Court was not right in proceeding with the suit ex parte, inter alia, holding that the adjournment sought for on behalf of the defendants should have been granted by the Trial Court. In support of his contention, he relied upon a decision of the Burma High Court in the case of Raj Chandra Dhar v. K. D. 0. C. Ray, AIR 1924 Rang 137 wherein it is held that in an appeal from an ex parte decree, the only question with which the Appellate Court is ordinarily concerned is as to whether the evidence on record, is sufficient to support the decree and not the question as to whether there was due service of summons on the defendants and that such issue cannot become the subject matter of an appeal, from the decree instead of becoming the subject matter of a special proceeding under Order 9 of the Code.
6. Shri V. S. Gunjal, learned counsel for the respondents defendants, on the contrary, contended that in an appeal against an ex parte decree preferred under Section 96 of the Code, it was within the power of the Appellate Court to hold that the Trial Court was not right in proceeding to decide the suit ex parte and to allow the appeal there from by setting aside the ex parte decree.
7. The question, which arises for my consideration by reason of the rival contentions urged on behalf of the contesting parties, is as to whether it is within the power of the Appellate Court deciding an appeal preferred against an ex parte decree, under Section 96 of the code to allow the appeal on the ground that the Trial Court was not right in refusing an adjournment and proceeding ex parte?
8. It is beyond doubt that a defendant, against whom an ex parte. Decree is made, can have recourse to any of the remedies available in the Code, such as, (i) making an application under Order 9, Rule 13 of the Code before the Trial Court for setting aside the ex parte decree; (ii) making an application under Order 47 of the Code for review; or (iii) filing an appeal under Section 96 of the Code.
9. If a defendant takes recourse to the remedy under. Order 41, he can get relief only when he has not preferred an appeal from the decree and when he is able to make out 'a case for review, on the basis of the limited, grounds, on which review is permissible under the Order. Again, if a defendant, against whom an ex parte decree is made, takes recourse to the remedy of appeal available under Section 96, he may have to make out a case for setting aside an, ex parte decree only on the basis of I the materials available on record or on such other additional evidence which may be brought on record under Order 41, R. 27. Having regard to the limited scope of the remedies under Order 47 and Section 96 of the Code, a defendant, Against whom an ex parte decree is made, will generally have recourse to the remedy available under Order 9, Rule 13 of the Code, in that, its scope is far wider when compared with the other two, it would be so for the reason that when an application under Order 9, Rule 13 is made, a defendant becomes entitled to adduce evidence for showing to the court either ' that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called on for hearing. Yet, the defendant cannot be prevented from choosing a less advantageous remedy to get the ex parte decree set aside.
10. The question, therefore, is that when an ex parte decree is made against a defendant, is it open to him to file an appeal therefore under Section 96 of the Code and obtain relief of setting aside the decree by showing to the Appellate Court that the Trial Court was not right in proceeding without granting the adjournment sought for? The Appellate Court, in my view, has power to examine the question as to whether the trial Court was not right in proceeding to decide the case ex parte. The reason for the same is not far to seek. When the material on record pertaining to the decree appealed against is sufficient for the appellate Court to find whether the Trial Court was not justified in refusing an adjournment and proceeding ex parte, there would be no justifiable ground, to prevent the Appellate Court from holding that the non-grant of an adjournment has affected the decision, and an that basis setting aside the ex parte decree. If it is held otherwise, it may result in denial of justice to a party entitled to it.
11. The observation of the Burma High Court in Rajchandra Dhar v. K. D. 0. C. Ray, AIR 1924 Rang 137 on which reliance was placed by the learned counsel for the plaintiff, by itself does not wholly support his contention, for all that is said therein is that the Appellate Court in deciding an appeal against an ex parte decree is ordinarily concerned with whether the, evidence on record is sufficient to support the decree. The word 'ordinarily' used by the Court indicates that there may also be cases where the Court may not concern itself with the question whether the evidence on record is sufficient to support the decree. The decision 'shows that it follows the view of Calcutta and Allahabad High Courts expressed in the case of Jonardan Dobbev v. Ram Dhone Singh (1896) ILR 23 Cal 738 and Hummi v. Aziz-Ud-Din ILR 39 All 143:. (AIR 1917 All 475) respectively in preference to the view of the Full Bench of the Madras High Court expressed in the case of Sadhu Krishna Ayyar v. Kuppan Ayyangar (1907) ILR 30 Mad 54. But, in the case of Jethalal Girdhar v. Varailal Bhaishankar AIR 1922 Bom 267 a Division ,Bench of the Bombay High Court consisting of Macleod, C. J. and Shah, J. on a thorough examination of the decisions referred to by the Burma High Court in its decision, has preferred to follow the decision of the Madras High Court in the case of Sadhu Krishna Ayyar, Macleod, C. J. has in that case, summarised the position of law, thus:-
'An order refusing an adjournment may form a ground of appeal at what ever stage of the hearing it may have been made and if the Appellate Court comes to the conclusion that an application for an adjournment had been wrongly refused, it clearly has the power to set aside the decree and order a retrial. If it has not sufficient material before it to decide whether an adjournment should have been granted, it has the power under Order XLI, Rule 27, to allow additional evidence to be produced'.
Shah, J. agreeing with Macleod, C. J. has explained the position of law in the course of his separate judgment, thus:-
'I am clearly of opinion that the lower Appellate Court had the power to consider the question whether the suit was heard ex parte against the appellants on sufficient grounds'.
The view taken by the Bombay High Court following Sadhu Krishna Iyyar's case of Madras High Court being in consonance with the view I have taken on the question, I am in respectful agreement with the same. The view taken by the Burma High Court in Raj Chandra Dhar's case if that really supports the contention of Appellant's counsel as urged by him, I respectfully disagree with the same.
12. In the result, the appeal fails and it is accordingly dismissed.
13. In the circumstances of the case, there will be no order as to costs,
14. Appeal dismissed.