1. Quite an elaborate argument was addressed in what appears to me to be a simple case in which the only question for determination is whether there is any case made out for the reversal of the decree made ex parte by the court below.
2. The real contesting parties herein are two brothers. The first plaintiff is the wife of the second plaintiff. His brother is the second defendant and the wife of the latter is the first defendant. On the strength of the deed of sale dated April 12, 1961, the first plaintiff is claiming a half share of the property covered by the deed. The terms of the deed show that the first plaintiff and first defendant have together acquired the property. There is no doubt that according to the apparent tenor of the document the two women are the co-owners. There is nothing in the deed to show that their sharers are not equal.
3. The written statement does not impugn the validity of the sale deed. The defence is that the second plaintiff desired that the purchase should be jointly made and so the deed was taken in the joint names of the ladies. but that the consideration was 0-aid exclusively by the second defendant. The inclusion of the name of the first plaintiff in the deed was nominal and does not confer any right on her.
4. It may be mentioned that the property acquired under the sale deed was the ancestral house of the family. It was sold in a court auction and one Jaggarao was the purchaser at the execution sale. It was for that for reason that when a conveyance was intended to be taken from Jaggarao, the second plaintiff expressed the desire that the property should be jointly acquired by the wives of the two brothers. And so it was done; according to the plaintiff the acquisition was for the benefit of both the brothers and the deed was taken in the name of their wives.
5. This action for partition was laid on 21-12-1966. The first attempt at service proved unsuccessful and so from 7-3-1967 the case stood adjourned till 14-4-1967. The renewed attempt to service the defendants fared no better and after several attempts. service of notices was effected in July 1967. It is an amazing feature of this case that so much time and effort were called for the preliminary step-p of serving the defendants with notice of the suit. although they were living in the same house as the plaintiff. It may have been an amusing game of hide and seek for the parties but it is distressing to note that parties intent on procrastination of legal proceedings could not be effectively curbed and the means of expeditious service had not been availed of.
6. On 24-7-1967 the defendants failed to appear and were set ex party and an ex parte judgment followed on 31-7-1967.
7. On 14-8-1967 the defendants filed applications to have the ex parte decree set aside. Their prayer was allowed and after restoration the suit was posted to 21-9-1967 for the written statements of the defendants. An adjournment allowed them time till 29-91967 but even that did not suffice and at their request they obtained time till 17-10-1967. On that date, their answer was presented and issues were also settled by the court. Time was allowed for filing of documents but none were put in court. The case stood posted for trial to 23-12-1967 and then to January 4, 1968.
8. The defendants contended that what is apparently real as per Ex. A. 1 the sale deed, is nominal. On them rests the legal or persuasive burden of proving that plea. They had to lead evidence in the first instance; they bear the risk of non-persuasion. The incidence of the burden was rightly fixed on them because they have to satisfy the court that the apparent co-ownership is a myth. They made no discovery of their documentary evidence. Nor did they ask for the court's aid for summoning any witness. It was a total unpreparedness for the trial when it began on 14-1-1968. The position remained unchanged thereafter though the case had undergone repeated adjournments, to the 5th, 12th 17th and 18th of that month. From the 18th, the trial and adjourned to the following day.
9. The defendants were not present in court. Their counsel said he was not ready to proceed with the case. They were set ex parte. The evidence of the plaintiff recorded before the first ex parte decree had been made the basis of the decree now questioned in this appeal.
10. It is now attempted to be argued that on the evidence and the pleadings the decree is unsustainable. The evidence on record not only warrants it but leaves no option to the court but to make it. The only ground of attack is that the court was in error in not granting the prayer for adjournment. It is said but it is not borne out by the record, that the second defendant was preoccupied with his agricultural operations and that the prayer for time was based on that representation. How long was he away? When did he expect to come back and what steps did he take before he left for the village in the hinterland? And was it impossible for the first defendant to have instructed counsel? To none of these pertinent questions can the record furnish any answer.
11. A glance at the notes paper shows that from 17-10-1967 sufficient time was granted to prepare for the trial fixed for December 23, 1967. And then again it was adjourned to January, 4, 1968. There is no light thrown on the omission that occurred in the intervening period. Assuming that the second defendant was away at his village on 23-12-1967. there was still adequate time to return home at Rajahmundry where the parties lived. And again between January 4 to January 18, had there been the will to participate at the trial, the defendants had ample opportunity to make preparation for their defence.
12. The position therefore is that it was a case of long wilful and deliberate neglect unrelieved by even a modicum of earnestness or fair play. The conduct of the defendants was dilatory from the outset. They frustrated the attempts to serve them with notices; they suffered an ex parte judgment; they never made the pre-trial preparations required to proceed with the trial; they crowed it all by a total abstention from the proceedings after the trial began.
13. In the affidavit filed in an interlocutory application in this Court, the assertion was made by the second plaintiff that his brother was present in the court premises on the 18th January and that he could not have been away at his village, I am inclined to accept this assertion as true, for if in fact the second defendant was out of station, a request in writing specifying that a reason would have been made by counsel. One cannot but draw the inference that had the second defendant been away in his village the repeated day to day adjournments would have been resisted and a longer adjournment would have been sought. I am inclined to accept the truth of the allegation that the second defendant was present in the court premises on 18-1-1968, and that there was a deliberate unpreparedness to face the trial presumably because the defendants had to answer to the suit.
14. The request for adjourned made to the court was deservedly negatived by the lower court. I am not persuaded that in all the circumstances of the case the court below had committed any error in the exercise of its discretion in rejecting the hallow and un-merited plea for adjournment. There was no reasonable cause for the non appearance of the defendants. On the contrary, it is manifest that the prayer for adjournment was grossly unreasonable. It is an in excusable lapse on the part of litigant to do nothing in furtherance of the presentation of his case at the trial, to allow time to slip by for several weeks or months, to pile up omission on omission and to plead ultimately after repeated adjournments that he prefers to attend to his personal business elsewhere rather than be present in court to face the suit or on the opposite side. The severest form of censure is called for in a case of this description. If a litigant wants to give priority to his business and does not choose to give precedence to the call of the court, his request for time cannot but be rejected.
15. It is complained on behalf of the appellants that the court was chary in granting a short time on each occasion and that the court acted unreasonably in doing so. It is true that a request for an adjournment of trial of a suit should be considered in an ungrudging or even in a generous spirit. Consistent with the need for a speedy disposal of suits and the listed business of the court, accommodation should be shown. And it is also necessary that the time granted should subserve the purpose for which it is asked for. The over all objective is to ensure a fair and satisfactory trial; if a denial of time places the litigant under a handicap and he in ;his own way is acting bona fide to ensure a termination of the proceedings within a reasonable time, a negation of his request may in effect cripple the conduct of his case. But the case on hand affords an illustration of an attempt to prevent and misuse the process of law. And I hold that the refusal of an adjournment on 19-1-1968 was not arbitrary or unreasonable. There is thus no case made out for interference in this appeal.
16. It is argued by learned counsel for the respondents that in an appeal from a decree made ex parte, the court deciding it has a limited functions. He contends that the appeal cannot be considered competent if it is confined to the question whether a reasonable or sufficient causes exists for non-appearance at the trial. he points out that if the decree is sought to be set aside on the ground that the defendant was prevented by a sufficient cause from appearance in court. his remedy is by an application under his remedy is by an application under Rule 13 of Order 9. He urges that the defendant cannot be allowed to circumvent the limitations inherent in a proceeding under rule 13 and cannot be allowed to get a relief in a court of appeal, although the ex parte decree was not erroneous on merits but is assailed solely on the ground that he had a good cause for his non-appearance. Counsel's argument in its essence is thus expressed. Where a ground urged in appeal is not that it is untenable on the evidence o at law but it questioned only on the ground that he court ought not to have proceeded with the trial in the absence of the defendant, the appeal is not maintainable.
17. The argument is opposed to precedent as well as principles. An appeal is a rehearing of the suit and the entire proceedings is the subject-matter of review, by a court sitting in appeal. And in that process it is competent for the court to consider whether the procedure adopted in the inferior court had affected. The validity of the decree. Judged from this angle it is manifest that it is appropriate for the court deciding an appeal to consider whether the refusal to grant an adjournment has so materially affected the decision as to impair its validity or basis. It may be that the scope of such a review is wider in its ambit that an inquiry under R. 13 of the O. 9. The appellate court can and ought to consider the question uninhibited by the narrower or stringent test which is relevant to an inquiry on a petition presented under R. 13 of O, 9. To accept the position urged by the learned counsel is to nullify the well established rule that an appeal brings within is purview the entire proceeding and the corrective jurisdiction of a court of appeal extends also to procedural errors of the trial court. A procedural errors includes also an error in he exercise of the discretion in proceeding with the trial in the absence of a party.
18. There is abundant authority in support of the view that I have taken. A Full Bench of the Madras High Court held in Krishna Aiyar v. Kuppan Iyengar. (1907) ILR 30 Mad 54 (FB) that an appellate court has jurisdiction in an appeal against a decree made ex parte to revise the decree on the ground that the court was wrong in proceeding to decide the suit ex parte. The consequence of such a reversal is that the appellate court may remand the suit for a fresh trial. This view was accepted by the Patna High Court in Ramial Gope v. Kali Prasad Sahu. ILR 9 Pat 408 = (AIR 1929 Pat 609). The principle formulated by that court is that it is open to the appellant in an appeal from an ex parte decree to question the propriety of an order refusing an adjournment and proceeding to hear the case ex parte. It is unnecessary to refer to other decided cases on the subject in view of the authoritative ruling in (1907) ILR 30 Mad 54, which is not shown to have been varied or dissented from by any later ruling of that court or the High Court of Andhra Pradesh.
19. It is unnecessary to consider the further ground urged at some length that there was an admission made by the second defendant in his deposition in another suit that the first plaintiff and his wife are co-owner of that house in question. The deposition is not brought on record as an Exhibit and its effect as also admissibility were debated at length. There is no need for me to rest my decision on that aspect.
20. The result is that the appeal must be rejected and it is accordingly dismissed with costs.
21. Appeal dismissed.