1. One Nawab Jan Nissar Yar Jung died leaving a widow Fatima Begum, He had a son Khalid Bin by another wife and two sons and three daughters by his wife Fatima; namely (i)Mansoor Bin, (ii) Munassar Bin. (iii) Ayeesha Begum (iv) Sayeda Begum, and (v) Zubida Begum. Mansoor Bin and Ayeesa Begum pre-deceased Nawab Jan Nissar Yar June. Mansoor Bin left behind him Fatima Begum and Khadija Begum. Ayeesha Begum left behind her Asiwaz Bin Sayeed Abi-al-lail and Abdul-lah Bin Abi-al-lail. On 17-12-1965 a lawyer's notice was issued to Munassar Bin on behalf of the eldest son, Khalid Bin. Fatima Begum and Khadija Begum the daughters of the deceased second son; Asiwaz Bin Sayeed Abi-al-lail and Abdul-lah Bin-Abi-al-lail the sons of the deceased daughter Ayeesha Begum and Sayeeda Begum and Jubida Begum, the daughters of late Nawab Jan Nissar Yar Jung to the third son Munassar Bin It was stated therein that Nawab Jan Nissar Yar Jung had died leaving these heirs and the three sons were entitled to two shares each and the three daughters were entitled each to one share. The share of the deceased son has to be divided between his daughters and the share of the deceased daughter had to be divided between her sons. It was also stated that Khalid Bin though entitled to two shares did not want to receive the same for his personal use. Munassar Bin was therefore requested to agree to a partition of the property of the late Nawab Jan Nissar Yar Jung according to the aforesaid shares. The notice was received on 21-12-1965. But Munassar Bin did not reply to that notice. Thereupon a suit Original Suit No. 51 of 1966 was filed on 14-10-1966 before the First Additional Chief Judge. City Civil Court, Hyderabad Apparently because Khalid Bin did not claim his two shares the plaintiffs who were three in number, namely the two daughters of the second son and one of the sons of the deceased daughter claimed that the property was to be divided into seven shares in which the plaintiff's share came to 5/14. The plaintiffs therefore asked for partition, and separate posses-sion of 1/7th share each for plaintiffs 1 and 2 and 1/14th sharp for the 3rd plaintiff. Munassar Bin was impleaded as the first defendant and the two daughters of late Nawab Jan Nissar Yar June as defendants 2 and 3 and another son of one of the deceased daughters as defendant No. 4.
2. On 15-11-1966 Sri K. Janardan Rao offered to appear for the 2nd defendant. Hence notice was ordered to defendants 1 and 3 and the suit was adjourned to 5-12-1966. On 5-12-1966 Sri Janardhan Rao appeared for defendants 2 to 4. Hence notice was ordered to the first defendant and the suit was adjourned to 24-12-1966. It is seen from the affidavit of the process-server that he went to the first defendant's place on 22-12-1966 and the first defendant was present in the house. He came out and refused to receive the summons and therefore a copy of the summons was affixed on his house. On 24-12-1966 the service was held to be sufficient and the first defendant was set ex parte. Time was granted to defendants 2 to 4 for filing a written statement. Defendants 2 to 4 filed a written statement agreeing to the suit being decreed in accordance with the plaint. Thereafter P. W. 1, the 3rd plaintiff, was examined and on 7-3-1967 and a preliminary decree for partition was passed as prayed for on the basis of the evidence of P- W. 1.
3. The first defendant against whom the decree had been passed ex parte filed an application before the Court below to set aside the ex parte decree under Order 9, Rule 13. That petition was dismissed. Thereupon, he preferred an appeal, C. M. A. 342/1968, to this court against the order refusing to set aside the ex parte decree. He also preferred a regular appeal against the ex parte decree which is the present appeal. C. C. C. A. No. 151 of 1971. As a regular appeal had been preferred, it is stated that the C. M. A. No. 342/1968 was withdrawn and dismissed.
4. In this appeal it is contended on behalf of the appellant, firstly, that the court below erred in setting the first defendant ex parte. Secondly it is contended that even assuming that the Court was right in setting the first defendant ex parte it ought not to have granted the decree in favour of the plaintiffs on the strength of the evidence of P. W. 1, which was not sufficient to prove the case of the plaintiffs.
5. Before considering the question, whether the Court below was right in setting the first defendant ex parte it has first to be considered whether it is open to the first defendant to raise that question in this appeal against the ex parte decree. It is settled law that when an ex parte decree is passed the defendant has two concurrent remedies. He can either apply under Order 9. Rule 13, Civil Procedure Code to set aside the ex parte decree or prefer a regular appeal against the ex parte decree. But the further question remains as to whether in an appeal against the ex parte decree it is open to the appellate Court to go into the question whether the lower Court was right in setting the defendant ex parte or not or whether its power is confined only to going into the merits of the plaintiffs' claim against the defendants. Sri Jalil Ahmed, the learned counsel for the appellant has relied upon a decision of the Full Bench of the Madras High Court in Sadhu Krishna Ayyar v. Kuppan Ayyan-gar. (1907) ILR 30 Mad 54 (FB) where it has been held that where an application under Order 9, Rule 13 of the Civil Procedure Code to set aside the ex parte decree is not filed it is open to the defendant in a regular appeal against the ex parte decree to contend that he ought not to have been set ex parte. But this decision has no application to the facts of the present case. This is not a case where no application at all was filed to set aside the ex parte decree under Order 9, Rule 13. This is a case where such an application was filed and was dismissed and an appeal preferred against the order has also been dismissed as withdrawn. The question is whether in such a case it is open to the appellant to contend in this regular appeal that the lower court was in error in setting the defendant ex parte. This is answered by a direct decision of a Bench of the Madras High Court in Asethu v. Kesavayya,. (AIR 1920 Mad 962). It was held that 'where an application to set aside the ex parte decree has been rejected under Order 9. Rule 13 it is not open to the defendant to have the question reagitated in the appeal from the decree itself and such a right is not given by Section 105 of the Civil Procedure Code. The decision of the Full Bench in Sadhu Krishna Ayyar v. Kuppan Ayyan-gar (Supra) was distinguished on the ground that in that case no application had been made to set aside the ex parte decree and it was observed that the case where the petition was made and rejected stands on a different footing. This decision has been followed in another Bench decision in Levai Sahib v. Ammenammal, (AIR 1924 Mad 1071 and by a Single Judge in Lakshmi Ammal v. Devadasi Nayudu, (AIR 1927 Mad 1114). Having regard to these decisions we hold that it is not open to the appellant to contend in this appeal that the order setting the defendant ex parte is not correct as the defendant had filed a petition to set aside the ex parte order which was dismissed and the appeal preferred against that order has also been dismissed as withdrawn.
6. Even assuming that it is open to this Court to go into that question we are not satisfied that the Court below was wrong in declaring the defendant ex parte. It was first contended that the process-server should have been examined on oath as reduired under Order 5, Rule 19 of the Civil Procedure Code and in as much as he was not examined the Court below was not right in coming to the conclusion that the defendant had refused the summons. Under) Order 5, Rule 19 of the Civil Procedure Code where the summons is returned is refused 'that Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath or cause him to be So examined by another Court......' it is thus seen that if the return has not been verified by the affidavit of the serving officer the Court shall examine the serving officer on oath. If, however, it has been verified by an affidavit of the serving officer the court may examine the serving officer on oath. In this case the return is supported by an affidavit of the serving officer. It was. therefore, left to the discretion of the Court to examine him on oath or not and in this particular case the Court did not consider it necessary to examine the serving officer on oath and held that the service was sufficient. We cannot say that the court was not justified in doing so.
7. The second contention raised is that under Order 9, Rule 6 (1) (c) if it is proved that the summons was served on the defendant, but' not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future date to be fixed by the Court. It is argued that the summons was sought to be served on 22-12-1966 and was fixed on 24-12-1966 and therefore there was no sufficient time to enable the defendant to appear and answer on the day fixed in the summons. It was therefore the duty of the Court to postpone the hearing of the suit and it ought not to have declared the defendant ex parte on 24-12-1966, ft is doubtful whether this rule would apply to a case where the defendant has refused the summons. The main purpose of the rule is to enable a person to appear and answer on the day fixed by the summons. If the defendant has expressed his disinclination to appear and answer by refusing the summons it does not stand to reason that the Court is bound to post-pone the hearing of the suit to a future day. Further in this case we are of the opinion that there was sufficient time for the defendant to appear before the Court. The defendant resides in Hyderabad and there was no difficulty in appearing before the Court on 24th even if the summons was served on 22-12-1966. He could have appeared and taken time for filing the written statement. But he did not choose to do so. We find from the note sheet that P. W. 1 was examined on 20-1-1967 in part and finally on 7-3-1967 when the decree was passed. Therefore there was an interval of more than three months after the date when the defendant was set ex parte. The defendant did not choose to appeal during the interval.
It is also brought to our notice that the first defendant himself filed I. A. No. 326 of 1967 contending that the Court below erred in giving a decree for partition instead of directing that the partition should be made by the Collector as the lands were agricultural lands. In other words, the stand taken by him was not that the Court was wrong in passing an ex parte decree against him, but that the decree should have been in a different form, namely to direct the Collector to partition the properties. We are, therefore, of the view that even on merits the Ccurt below was right in setting the defendant ex parte even if such a question was open for consideration by this Court in this appeal.
8. Lastly it is contended that treating this as a regular appeal from the decree the evidence produced by the plaintiffs is not sufficient to grant a decree in their favour. The decree is passed on the evidence of P. W. 1 who stated in his evidence that late Nawab Jan Nissar Yar Jung died leaving behind him the heirs and the properties which were the subject-matter of the suit and the plaintiffs were entitled to the shares claimed by them. We do not think that any further evidence is required when no written statement is filed by the first defendant and the other defendants filed a written statement agreeing to the plaintiff's claim. Sri Jalil Ahmed, the learned counsel for the appellant, contended that the plaintiffs should have further let in evidence to prove that the property s originally belonged to Nawab Jan Nissar Yar Jung. We do not think that it was necessary to do so in the absence of any denial by the defendants of the averments in the plaint. Sri Jalil Ahmed also referred to an affidavit filed in the stay petition in this court where several contentions were raised by the first defendant. He submitted that these contentions were substantial in nature. But unfortunately these contentions which were raised in that affidavit were not raised in the suit by filing the written statement. We are of the view that the suit was properly decreed on the evidence of P. W. 1. The appeal is dismissed with costs.
9. In view of the dismissal of the appeal, the C. M. Ps. are also dismissed.