1. This is a revision filed by the defendant against the order of the Additional Chief judge, City Civil Court, dated 8th Feb. 1977 in c. M. A. No. 23 of 1976 allowing the appeal filed by the plaintiff and setting aside the order of the First Assistant Judge who dismissed I. A. No. 88 of 1975 on 17th Sept. 1975 which was filed by the plaintiff for setting aside the ex parte order dated 16th Jan., 1975.
2. The learned counsel for the petitioner defendant contended that the petition filed by the respondent under O. 9M R. 7 C. P. C. is not maintainable. It was further contended that the affidavit of the respondent-plaintiff was not filed in support of the petition under O. 9, R, 7 C. P. C. The respondent has no case on merits and it serves no useful purpose even if the case is sent back to be adjudicated on merits.
3. Taking the first point it can be observed that the respondent filed the petition under O. 9, R. 7, C. P. C., but no objection seems to have been taken before the trial Court as regards the maintainability of the petition. in fact, it is admitted that the trial Court has dealt with the petition on merits and held that there was no sufficient cause for non-appearance of the petitioner and his Advocate on 16-1-1975. Accordingly, the trial Court dismissed the petition.
4. The question of maintainability was taken in the appellate Court. The appellate Court dealt with the matter under point No. 3 framed by it. it held that the order passed by the trial Court 0n 16-1-1975 was an ex parte order and liable to be set aside under O. 9, R. 13, C. P. C. This aspect was, of course, dealt with by the lower Court under point No. 2 in great detail. Suffice it to say that on the facts and in the circumstances of the case the order passed by the trial Court shows that the respondent in the I. A. was set ex parte and order dated 16-1-1975 passed is extracted below:---
'Respondent (Plaintiff ) and his counsel are called Absent. Waited up to 4-45 P. M. No representation for respondent. The respondent is set ex parte. The petition is allowed.'
Irrespective of any other consideration, on the face of it, it shows that the respondent was set ex parte. Whatever might have been mentioned in the petition, the substance of the petition is to set aside the order. It is well settled that the Court would be guided by the substance of the petition and not by the provisions that are quoted under which the petition is filed. Whether the substance and the prayer clearly indicate that the petition is filed under O. 9, R. 13 of not, the Court could treat the petition under that particular provision of law and adjudicate the same, Merely because O. 9, R. 7 is quoted in the petition, that does not take away the jurisdiction of the Court to treat the petition as one filed under O. 9, R.13 and adjudicate the same. In my view this contention is devoid of any force.
5. The learned counsel for the petitioner relied on the decision in Malleshappa v. Firm of Veer Chand AIR 1965 Mys 300. In that case the revision was filed against an interlocutory order wherein the opposite side was set ex parte and the case was adjourned for taking further proceedings in the matter., Subsequently the case was disposed of ex parte and a decree was passed. When the revision came up for hearing, it was brought to the notice of the High Court that the decree had already been passed and no useful purpose would be served by an interlocutory order and that the interlocutory order will not have any effect of setting aside the decree passed subsequent to the order against which the revision is filed. Unless an appeal is filed or proceedings are taken to set aside the decree under the law the order to be passed by the High Court would not enure to the benefit of the defendant or the respondent. In those circumstances the High Court dismissed the revision petition. In my view, that judgement has no application to the facts of the present case.
6. The second ground argued by the learned counsel for the petitioner is that learned the Advocate has filed the affidavit but not the party. The plaintiff of course has not shown to the Court that he personally could not attend the Court for sufficient reasons. This aspect of the case was dealt with exhaustively and it was held that the Advocate has filed the affidavit and given full facts in the affidavit. The Advocate also stated the circumstances under which he could not be present in the Court when the case was taken up and as to why he could not reach the Court even by 4-15 P. M. The Appellate Court was satisfied that the affidavit filed by the Advocate could be relied upon and accepted the same. When the lower Appellate Court has accepted the affidavit this Court cannot interfere in revision. Accepting the affidavit or rejecting the affidavit belongs to the realm of appreciation of evidence. When the Appellate Court believed certain facts and acted upon them, this Court will not interfere with such a finding of fact. The lower Court, having accepted the version given by the Advocate, held that for sufficient reasons he could not attend the Court and for that reason set aside the ex parte order.
7. The learned counsel for the petitioner vehemently contended that there is no case for the respondent even if the case is remanded. Once the time fixed for the amount expires, the Court had no jurisdiction to extend the time. The petition filed by the petitioner was to rescind the contract. The respondent committed default in payment of the amount within time. As the respondent could put up no defence, it will serve no useful purpose to send back the case. This argument was addressed before the Appellate Court also. But the lower Appellate Court took the view that in a petition for setting aside the ex parte order, it was not proper to adjudicate the petition on merits. in my view, the Appellate Court was right in holding that merits could not be gone into in such a petition. Therefore, I see no substance in this contention also.
8. The learned counsel for the petitioner further pointed out that the petition was heard on 15-1-1975 and the case was posted in continuation of tat for further arguments on 16-1-1975 i.e., the case was part heard on 15-1-1975 and therefore it was taken up on 16-1-1975 on which date the respondent was set ex parte. It was submitted that when the case was taken up for hearing, the absence of the Advocate is no ground and, therefore the affidavit of the Advocate ought not to have been accepted.
9. The learned counsel for the respondent, on the other hand, pointed out that the case was finally posted on 16-1-1975 and on that date the defendant was set ex parte. It was observed that the case was posted on 16-1-1975. It cannot also be said that the case was not heard on 15-1-1975. Even if it was heard on 15-1-1975, it was posted on 16-1-1975. When the arguments were part heard, the question of setting ex parte the defendant does not arise. it is submitted across the Bar that the learned counsel for the respondent started arguments on 15-1-1975. If that is so, the learned Judge of the trial Court ought not to have set the defendant ex parte. It may be noted here that the trial Court wanted to dispose of the matter expeditiously. When the trial Court started the hearing of the matter, for one reason or other if the Advocate could not be present in the Court, it could have posted the matter on the next day. On the other hand, the order only shows that after hearing the counsel for the petitioner at length and after the learned counsel for the respondent started arguments, the learned judge has chose to set ex parte the respondent and allowed the petition. This type of disposal is not proper for the trial Court. Instead of disposing of the case on merits, having set the respondent ex parte, it had allowed to take proceedings to set aside ex parte order and when that petition was dismissed, the matter was taken in appeal. The appeal was allowed and thereafter the present revision has been filed against that appellate order. The order setting the respondent ex parte was passed on 16-1-1975 and the present revision is taken up in the High Court on 23-2-1978 i.e., after a period of three years. Had the learned Judge waited for some time or posted the case to the next day, this delay of three years could not have occurred to dispose of the matter on merits. It is always desirable that when the hearing of the case started on merits setting the party ex parte or dismissing or allowing the petition is not justified or proper. It only adds to the agony of the parties. Therefore, keeping all these facts in view, I see no reason to interfere with the order of the lower Appellate Court.
10. This Civil Revision Petition is accordingly dismissed, but without costs.
11. Revision dismissed.