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Abdul Aziz and anr. Vs. A. Raj Chhabra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 13 of 1964
Judge
Reported inAIR1968All119
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 9, Rules 6 and 13 - Order 11, Rule 21 - Order 17, Rule 3 - Order 43, Rule 1; Constitution of India - Article 227
AppellantAbdul Aziz and anr.
RespondentA. Raj Chhabra
Appellant AdvocateNaziruddin, ;Hisamuddin and ;Saghir Ahmad, Advs.
Respondent AdvocateM.K. Seth, ;K.N. Kapoor, ;O.P. Agrawal and ;G.R. Chhabra, Advs.
DispositionAppeal allowed
Excerpt:
(i) civil - dismissal of appeal - order 11 rule21 and order 43 rule1(f) of code of civil procedure,1908 - case was dismissed by the court - defendant is defaulter - appeal is maintainable under order 11 rule 21. (ii) ex parte decree - order 9 rules 6 and 13 of code of civil procedure,1908 and article 227 of constitution of india - ex-parte decree has been passed against the defendant - decree can be set aside under order 11 rule 21 - article 227 - high court competent to set aside the ex-parte decree under order11 rule 21 being without jurisdiction. - - 1. i have had theadvantage of going through the judgment prepared by my learned brother and though i agree with the ultimate order proposed to be passed in the case, i would.....g.d. sahgal, j. 1. i have had theadvantage of going through the judgment prepared by my learned brother and though i agree with the ultimate order proposed to be passed in the case, i would like to add a few words of my own.2. the facts of the case do attract the provisions of order ix, rule 13 of the code of civil procedure. under rule 21 of order xi of the code of civil procedure if there is a failure of compliance with any order to answer interrogatories or for discovery or inspection of documents, then if the defaulting party is a plaintiff, he is liable to have his suit dismissed for want of prosecution and if a defendant, to have his defence struck out and to be placed in the same position as if he had not defended. there is thus a difference between the case of a plaintiff if he is.....
Judgment:

G.D. Sahgal, J.

1. I have had theadvantage of going through the judgment prepared by my learned brother and though I agree with the ultimate order proposed to be passed in the case, I would like to add a few words of my own.

2. The facts of the case do attract the provisions of Order IX, Rule 13 of the Code of Civil Procedure. Under Rule 21 of Order XI of the Code of Civil Procedure if there is a failure of compliance with any order to answer interrogatories or for discovery or inspection of documents, then if the defaulting party is a plaintiff, he is liable to have his suit dismissed for want of prosecution and if a defendant, to have his defence struck out and to be placed in the same position as if he had not defended. There is thus a difference between the case of a plaintiff if he is the defaulter and that of a defendant if he is the defaulter. In the former case the suit is liable to be dismissed for want of prosecution as a result of the default and if the court thinks fit to enforce the provisions of this rule, the plaintiff's suit has to be dismissed straightway for want of prosecution. But in the case of a defendant in the case of his default, the suit is not to be decreed ex parte but the defence is to be struck out and the defendant is to be placed in a position as if he had not defended himself. Before deciding the case, therefore, one more step has to be taken, namely, the taking of evidence in order to decree the suit ex parte in case the defendant even after his defence had been struck out, does not put in appearance.Order XLIII gives a right of appeal to the plaintiff as well as the defendant whosoever may be the defaulter and against whomsoever an order is passed under R. 21 of Order XI. The appeal in case the defaulting party is the plaintiff will be against the dismissal of the suit for want of prosecution. But if the defaulting party is the defendant, it will be against the order striking out his defence and placing him in the same position as if he had not defended. In the case of the defendant the appeal will not be against the order decreeing the suit ex parte. It is not even necessary that the suit be decreed ex parte in the case of a defendant as it is in the case of a plaintiff necessary that it should be dismissed for want of prosecution. Even after the defence of the defendant has been struck out and he has been placed in a position as if he had not defended, the Court may find that the case has not been made out against the defendant after the plaintiff has produced his evidence and the suit may be dismissed.

Thus the difference between the two cases is that while in the case of the plaintiff if an appeal is filed under Order XLIII, Rule 1(f), it will be an appeal against the dismissal order, but in the case of a defendant it will not be an appeal against the ex parte decree that may be passed against him but it will be against the order striking out his defence and placing him in a position as if he had not defended. The proceeding after the passing of the order under Rule 21 against the defendant is a subsequent proceeding and whatever is done as a result of those proceedings is not governed by the provisions of Order XLIII, Rule 1, What happened in this case, was that after the defence was struck out a date was fixed for ex parte hearing and the suit was decreed ex parte on the 17th of July, 1963 after the evidence was taken ex parte on the 16th of July, 1963. The ex parte decree, therefore, was not passed under Order XI, Rule 21 but was passed because of the default of the defendants. Order IX, Rule 13, therefore, clearly applied to the case. The order dated the 17th of July, 1963, therefore, can be set aside if the conditions of that Order under which an ex parte decree can be set aside are satisfied. I agree with rny learned brother that those conditions have been satisfied. I need not enter into the details of the facts which have led him to conclude that the ex parte decree ought to have been set aside.

3. The two cases relied upon by the learned Civil Judge and referred to by my brother, namely, Shyam Sunder Lal v. Gul Charan, 1956 All WR (HC) 414 and Maung Khant Gyi v. Ma Thet Hmin, AIR 1929 Rang 218 do not apply to the case. The learned Civil Judge, therefore, was wrong in dismissing the application on the authority of those cases.

4. As to whether it was a case of an adjourned hearing and whether Order XVII, Rule 3 of the Code of Civil Procedure applied to the case or not I have nothing to add to what my learned brother has pointed 3ut and I am of opinion that those provisions do not apply.

5. The main question that arises is of what use would it be to the defendants at all if the suit is restored, for after all their defence had been struck out and even if they are allowed to put in appearance, the suit would proceed as if they had not defended themselves in view of the order passed under Order XI, Rule 21 of the Code of Civil Procedure. We have, therefore, to examine whether the order dated the 6th of July, 1963 should also be set aside in these proceedings.

5A. The learned Civil Judge, it appears, has been too hasty in striking out the defence of the defendants. An analysis of Rule 21 shows that a defendant becomes liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended himself, if he fails to comply with any order of discovery or inspection of documents. That does not, however, mean that his defence should in every case. be struck out or that he should be placed in the same position as if he had not defended himself. The defendants may be liable to have their defence struck out and to be treated as if they had not defended themselves, but there has to be an order actually for the striking out of the defence and the defendants being placed in the same position as if they had not defended. The rule contemplates that the party seeking discovery or inspection may apply for an order to that effect and an order may be made accordingly. There has, therefore, to be an application for the making of such an order by the party interested in getting such an order passed and only then the court 'may' pass such an order it is not bound to pass such an order.

The first part of the rule provides only for a liability of the plaintiff for his suit being dismissed for want of prosecution or of the defendant to have his defence struck out and to be placed in the same position as it he had not defended. But it does not go beyond that. In order that the liability may become an actuality some step is contemplated to be taken by the defendant by way of making an application, may be orally, in case he wants the suit of the plaintiff to be dismissed for want of prosecution or by the plaintiff in case he wants the defence to be struck out and the defendant placed in the same position as if he had not defended. No such step seems to have been taken in this case. It is faintly urged on behalf of the plaintiff that it may be that an oral application might have been made by the plaintiff when the order striking out the defence was passed. But even though he had appeared in the lower court on behalf of the plaintiff, he could not saywhether or not any such application was actually made orally. A perusal of the order indicates that the order was passed by the court suo motu without any application being made by the plaintiff and as I am of opinion that the court had no jurisdiction to pass any such order suo motu but could pass it only on an application made by the plaintiff, the order striking out the defence of the defendants and putting them in the same position as if they had not defended in the case, was passed without jurisdiction.

6. The question is whether this order which is without jurisdiction can be set aside by this Court in these proceedings. It cannot be set aside under Section 115 of the Code of Civil Procedure as the defendants had a right of appeal under Order 43, Rule 1(f). An order passed without jurisdiction can be set aside under Article 227 of the Constitution even though there may be an alternative remedy to get that order set aside if the circumstances of the case justify its being so set aside. This was the view of a Division Bench of this Court in S. Barrow v. State of U.P. 0043/1958 : AIR1958All154 . That was a case arising out of an application under Article 226 of the Constitution. An order was passed by the Land Acquisition Officer reviewing his earlier order. The order so passed by him was held to be without jurisdiction as he had no power of review. It was, therefore, ordered to be set aside. But if the earlier order was restored as a result of the order setting aside the order of review, it amounted to the restoring of an order which was passed in contravention of the provisions of the Constitution (Fourth Amendment) Act 1 of 1955. The Land Acquisition Officer had not given effect to the provisions of Sub-section (1) of section 11 of the U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 on the ground that it had been declared to be constitutionally invalid. This provision of law. however, stood validated on the date the order was passed by the Land Acquisition Officer, but it did not seem to have been brought to his notice. Even though there was a decision of this Court declaring that provision of law to be invalid, it had subsequently been validated and it was valid on the date the Land Acquisition Officer was making the order

It was in these circumstances that an application for review was made before him and he allowed it. It was, however, held that he had no jurisdiction to review his earlier order. The result was that after the setting aside of an order which was passed by him without jurisdiction, an order was restored which was itself a bad order and acted adversely to the interest of the respondent. If the order passed by the Land Acquisition Officer without jurisdiction was set aside, its effect would have been the restoration of a wrong order to the disadvantage of the party against whom the writ was being allowed. The order which wasbeing set aside, though an order passed without jurisdiction, was in any case an order in accordance with the validated amendment of the Act and was a proper order which ought to have been passed at the stage at which the Land Acquisition Officer passed the order which he had reviewed. Equity, therefore, demanded that that wrong order also should be set aside as the granting of the relief under Article 226 of the Constitution to the applicant by the Court perpetuated a wrong to the respondents. In the instant case, this is not the position. Here if the appeal is allowed only to the extent of the setting aside of the order dated the 17th of July, 1963, we would be left with the order dated the 6th of July, 1963 striking out the defence of the defendants. The setting aside of the order dated the 17th of July, 1963, therefore, would not place the plaintiff to disadvantage. The equities that Were applicable in the case of 0043/1958 : AIR1958All154 (Supra) are, therefore, not applicable to this case.

7. There are, however, circumstances in the case also which justify our interference with the order dated the 6th of July, 1963 as well. The order dated the 6th of July, 1963 struck out the defence of the defendants. The defendants did not make an appeal under Order 43, Rule 1(f). They came to the court only after the suit had been decreed against them ex parte on the 17th of July, 1963. At that stage had they filed an appeal under Order XLIII, Rule l(f) against the order dated the 6th of July, 1963, which lay to the High Court, probably a question would have arisen as to what use it was in getting the order dated the 6th of July, 1963 set aside when the suit itself stood decreed against them and the decree still remained. It was, therefore, necessary for them first to get the ex parte decree set aside, for only after the ex parte decree had been set aside, could the setting aside of the order dated the 6th of July 1963 be of any use to them. If they did not file an appeal under Order XLIII. Rule l(f) of the Code of Civil Procedure against the order dated the 6th of July, 1963 passed against them but preferred to file an application under Order IX, Rule 13 of the Code of Civil Procedure before the very court which decreed the suit ex parte, it would not be proper to grant them only the limited relief of setting aside the ex parte decree when the matter has come up in appeal before this Court and to leave the order dated the 6th of July, 1963 standing against them,

It is only after the ex parte decree is set aside that it would be of any use to them to get the order dated the 6th of July, 1963 set aside. If that order is not set aside in these proceedings, they may be advised to file an appeal against that order along with an application for condonation of delay under section 5 of the Limitation Act. It will be a tedious process Indeed. Notice may have to be issued on the application underSection 5 and if the application is allowed, notice may have again to be issued in the appeal itself under Order XLIII, Rule 1(f). The remedy, therefore, that would be open to the defendants would be a tedious and expensive remedy and would delay the trial of the case which has already been so much delayed. It is, therefore, right and proper in the circumstances of the case that the order dated the 6th of July, 1963 should also be set aside. I am, therefore, of opinion, though for reasons different from the reasons given by my learned brother, that the order dated the 6th of July, 1963 also should be set aside.

8. I would, therefore, allow the appeal with costs and set aside the ex parte decree dated the 17th of July, 1963 and also the order dated the 6th of July, 1963 striking out the defence of the defendants.

Lakshmi Prasad, J.

9. This is a defendants' appeal from an order rejecting the appellants' application under Order 9, rule 13 of the Code of Civil Procedure.

10. On plaintiff's application dated 3rd March, 1962 the trial court passed an order on 21st November, 1962 directing defendant appellants to make discovery on oath of certain documents by 15th December, 1062. The order was obviously passed under Order 11 Rule 12 C.P.C. On 15th December, 1962, the case was adjourned for wantof time to 19th January, 1963.

* * * * *

On 6th July, 1963 no one appeared on behalf of the appellants with the result that the trial court ordered, presumably under Order 11 rule 21, C.P.C., that the defence be struck off and the case be fixed for ex parte hearing on 16th July, 1963. It was accordingly heard ex parte on 16th July, 1963 and judgment was passed next day resulting in a decree in favour of the plaintiff respondent. It is in these circumstances that the appellants moved an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree dated 17th July, 1963. It was opposed by the plaintiff respondent on the ground that the decision was in effect on merits and no such application was maintainable. The trial court accepted the contention of the plaintiff respondent that an application under Order 9 rule 13 C.P.C., in the circumstances aforementioned, was incompetent and accordingly dismissed it. Hence the defendants have come up in appeal.

11. 1 have heard learned counsel for the parties at some length. The question for determination is if the view taken by the court below, that in the circumstances mentioned above an application under Order 9, Rule 13, C.P.C. was incompetent, is correct. The trial court has placed reliance on 2 cases in support of its view viz. (1) 1956 All WR (HC) 414 and (2) AIR 1925 Rang 218. As pointed out in the judgment of the trial court itself, the decision given in each of these two cases is that where a suit isdismissed under Order 11 Rule 21 because of plaintiff's failure to comply with an order passed under Order 11 Rule 12, it cannot be restored by means of an application under Order 9 Rule 9 C.P.C. The trial court fell in error in thinking that the aforesaid decition involved a question of principle which would be applicable even to an application moved under Order 9 Rule 13 C.P.C. for setting aside an ex parte decree passed after striking off the defence under Ordre 11 Rule 21, C.P.C. As shall appear from the very opening sentence of Order 9 Rule 8(1) C.P.C., an application for restoration can be moved thereunder only where the order of dismissal has been passed under Order 9 Rule 8 C.P.C., and that it cannot be moved in case of a dismissal under any other circumstance. Now, rule 8 of Order 9 C.P.C, provides for the dismissal of a suit only where the defendant appears and the plaintiff does not appear when the suit is called for hearing. It shall thus be seen, reading the provisions of Rules 8 and 9 of Order 9, C.P.C. together, that an application for restoration under Order 9 Rule 9 C.P.C. is competent only where a suit has been dismissed because of the non-appearance of the plaintiff and would not be competent where the dismissal has resulted from some other cause, such as by virtue of an order passed under Order 11 Rule 21, C.P.C. The language of Order 9 Rule 13 C.P.C. is materially different. The opening words of the said Rule 13 are:

'In any case in which a decree is passed ex parte against a defendant, he may apply to the Court.. .. .. '.

It shall thus be seen that Rule 13 is wide enough to cover all cases of ex parte decrees no matter for what reason the ex parte decree has been passed. A perusal of Order 11 Rule 21 C.P.C. would show that where a defence is to be struck off in the circumstances mentioned therein, the order would be that the defendant 'be placed in the same position as if he has not defended.' This also indicates that once the defence has been struck off under Order 11 Rule 21, C.P.C. the position would be as if the defendant had not defended and accordingly the suit would proceed ex parte. That is what exactly happened in the instant case. As already mentioned, the court below passed an order directing that the defence be struck off on 6th July, 1963 and it further directed that the case be listed for ex parte hearing on 16th July. It was thereafter heard ex parte on 16th July in the absence of the appellants and a decree was passed next day. Thus, there is no escape from the conclusion that the application moved by the appellants under Order 9 Rule 13 C.P.C. was fully competent and the view taken by the court below to the contrary is erroneous. The cases relied on by it in support of its view are, as indicated above, not 11 applicable to the facts of the present ease.

12. The learned counsel for the plaintiff respondent further tried to lustily the view of the trial court on the ground that notwithstanding what the trial court actually said, the decree dated 17th July, 1963 must be taken to have been passed oh merits as envisaged by Order 17 Rule 3, C.P.C. since the case was adjourned several times at the instance of the appellants in order to enable them to do something which was necessary for the further progress of the suit. We are unable to accept the contention. Order 17 Rule 3, C.P.C. does not appear to be at all applicable to the facts of this case. As is obvious from the language of the said provision, it applies only to cases where a party makes a prayer for time to be able to do some act necessary for the further progress of the suit and thereafter fails to do it within the time allowed. In the instant case, no doubt the case was adjourned on repeated applications moved on behalf of the appellants, but the fact remains that they did not seek adjournments to be able to produce their evidence, or to cause the attendance of their witnesses, or to perform any other act which they wanted to be done for the further progress of the suit. In fact, it was the respondents, application that the appellants be required to make discovery of certain documents and that resulted in an order from the court requiring the appellants to make discovery by a certain date. So, the applications moved on the appellants' behalf for time were in fact moved with a view to be able to comply with the order of the court and not with a view to perform any act which the appellants wanted to be done for the progress of the suit. The opening words of Order 17 Rule 3, which appear to lay down as if it were a condition precedent for its application, are:

'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit.. .. . '

The words 'any other act necessary to the further progress of the suit,' when read in the context of what precedes these words in Order 17 Rule 3 must be interpreted to mean that the 'act necessary to the further progress of the suit' is the act required to be performed on the motion of the party seeking time and not on the motion of the opposite party. We have thus no doubt that Order 17 Rule 3 C.P.C. could not have been applied to the facts of the case and the trial court was right in proceeding with the case ex parte after striking off the defence under Order 11 Rule 21, C.P.C.

13. in view of what I have said above, it follows that the order of the court below, rejecting the appellants' application under Order 9 Rule 13 C.P.C. as being incompetent, must be set aside. But the question then arises that even it this order is setaside and ultimately the applicants' application under Order 9, Rule 13, C.P.C. is allowed on the basis that they have been successful in making out a sufficient cause for their absence on 6th and 16th July, 1963, how would all this help them, since still, the order, rejecting their defence under Order 11 Rule 21 C.P.C., would stare at their face. The argument is that their proper remedy was to go in appeal against the order in order to get an effective relief rather than to approach the court by an application under Order 9 Rule 13 C.P.C. On a close scrutiny of the provisions of Order 11 Rule 21 C.P.C. we find that the condition precedent to the exercise of jurisdiction thereunder for the dismissal of the suit or for stricking off the defence, as the case may be, is a motion in that behalf by the party interested in securing such an order. For the sake of convenience we reproduce Order 11 Rule 21 below:

'Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly.'

It shall be seen that it is divisible in two parts. Its first part provides for the liability the party in default is to incur. Its other part provides for an order that may be passed to enforce that liability on a motion being made in that behalf. That there must be a motion first and then alone an order can be passed follows from the concluding words of Rule 21, viz.

'and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect and an order may be made accordingly.'

These words, in our opinion, clearly indicate that an order to enforce the liability envisaged by the earlier part of Rule 21 can be passed only if there is a motion for the same by the party interrogating or seeking discovery or inspection in the instant case it appears, no motion was ever made by the plaintiff respondent praying for striking off the defence on the score that the appellants had failed to make the discovery as ordered by the court. Learned counsel for the plaintiff respondent conceded that there was no written application for the purpose but suggested that there could be an oral prayer as well in that behalf. It is true that an oral prayer can serve the purpose since there is nothing in Rule 21 to exclude that. But the question as if there was even an oral prayer for the purpose. Though the learned counsel himself appeared in the court below for the plaintiff respondent he was not in a position to make a categorical statement that an oral prayer was actually made for securing an order under Order 11 Rule 21 C.P.C. A perusal of the order if at all shows that the order was passed by the court suo motu without any application being made by the plaintiff respondent. Hence, it must be held that in fact there was no application oral or written before the court below praying for an order under Order 11 Rule 21 C.P.C. when it passed the order striking out the defence on the ground that the appellants had failed to comply with the order passed under Order 11 Rule 12 C.P.C. In my view, the court had no jurisdiction to pass such an order in the absence of a motion in that behalf. Hence, the inevitable conclusion is that the order, which is suggested to stand in the way of the appellants even if their application under Order 9 Rule 13 C.P.C. is allowed, is one without jurisdiction.

Such an order can, in my opinion, be set aside by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. Section 115 C.P.C. cannot be invoked in this connection for the simple reason that an order which is appealable cannot be revised thereunder. It is well settled that the power of interference under Article 227 is wider than that under Section 115 C.P.C., though of course that power is to be used sparingly and only in cases of grave dereliction of duty. But there is authority for the proposition that an order passed without jurisdiction can be interfered with under Article 227. Reference may in this connection be made to the case of Dalmia Jain Airways Ltd v. Sukumar Mukherjee, : AIR1951Cal193 . It, is laid down in Mani Ram v. Jhamru, that the tact that other remedies are open will not prevent the High Court from interfering in the case of in re, Annamali Mudaliar : AIR1953Mad362 . Ramaswami J., after discussing numerous authorities with reference to the High Court's power under Article 227 of the Constitution observed in paragraph 12 of the report at page 366

'.. . .. . the extraordinary powers conferred on the High Court under Article 227 would enable the High Court to ensure that the tribunals are kept within the bounds of their authority and that they do what their duty requires and that they do it in a legal manner.'

This Madras case is approved by a Division Bench of the Calcutta High Court in the case of Abanindra Kumar Maity v. A.K. Biswas : AIR1954Cal355 The relevant observations are made in the concluding portion of paragraph 38 of the report at page 361 in the case of 0043/1958 : AIR1958All154 a Division Bench of this Court has held that an order against which remedy was open by way of a reference under Section 11(3) of the Land Acquisition Act, but the same was not availed of could be revised by this Court in exercise of its jurisdiction under Article 227 of the Constitution. The material observations appear in paragraphs 17 and 18 of the report at page 158. What was challenged in that case by a writ under Article 226 of the Constitution was an order passed by the Land Acquisition Officer after reviewing his earlier order dated 19th May, 1955 which was clearly erroneous and in contravention of the provisions of the Constitution as it stood amended after the coming into force of the Constitution (Fourth Amendment) Act. The impugned order was found to be without jurisdiction in so far as the Land Acquisition Officer had no power to review his earlier order. So, if the impugned order was to be quashed on that score, the result would be that the earlier erroneous order dated 19th May, 1955 would get restored. The State Government at whose instance the impugned order was passed did not apply for reference under Section 11 (3) of the Land Acquisition Act in time. It was in these circumstances that the Division Bench held that not only the Impugned order was to be quashed but also the earlier order dated 19th May, 1955 which it could do in any case in exercise of its power under Article 227 of the Constitution. Having regard to this legal position, we are of opinion that the order passed by the court below under Order 11 Rule 21 C.P.C. being without jurisdiction deserves to be set aside and this Court is competent to do so in exercise of its power under Article 227, even though the remedy open to the appellants by way of an appeal under Order 43 C.P.C. has not been availed of. On the facts of the case I am satisfied that there would be grave injustice if the order passed on 6th July, 1963 in purported exercise of the trial court's jurisdiction under Order 11 Rule 21 C.P.C. is allowed to stand, even though, as found by me, it came to be passed without jurisdiction. In the circumstances, I am of opinion that the said order dated 6th July, 1963 must be set aside in exercise of this Court's jurisdiction under Article 227 of the Constitution which power it is well settled can be exercised even suo motu.

14. in view of what I have said above, the point for consideration arises if after setting aside the order under appeal we may remand the case to the trial court to dispose of the appellants application under Order 9 Rule 13, C.P.C. on merits after deciding for itself as to whether or not it makes out a efficient cause for the appellants' absence on 6th and 16th July, 1963, or we should ourselves go into that question of fact and decide the matter finally, having regard to the period of time the matter has already taken. I think the latter course would be more appropriate in the circumstances of the present case. I have examined the affidavit filed in support of the application moved by the appellants under Order 9, Rule 13, C.P.C. as also the counter affidavit filed on behalf of the plaintiff respondent. The affidavit filed on behalf of the appellants makes out that they having been entrusted with the work of the supply of rations and other things needed by the army in Assam and Nefa, were working there in such circumstances in which it was not possible for them to contact their counsel so as to let him know their whereabouts in order to enable him to inform them about the various dates fixed in the case from time to time.

The facts sworn in the affidavit are simply denied in the counter affidavit which fails to make any positive assertion suggesting either that the appellants were not engaged in that important work or that they did have information of the dates fixed or could have it with due diligence. In the circumstances, I am satisfied that the appellants have made out a sufficient cause for their absence on 6th and 16th July, 1963. That fact furnishes an additional ground for holding that the order dated 6th July, 1963 passed in the appellants' absence in the purported exercise of jurisdiction under Order 11 Rule 21, C.P.C. deserves to be set aside.

15. in the end I would allow the appeal with costs and setting aside the ex parte decree dated 17th July, 1963 as also the order dated 6th July, 1963, striking off the appellants' defence, direct the trial court to proceed to decide the suit on merits after hearing the parties.

By The Court

16. The appeal is allowed with costs. The ex parte decree dated the 17th of July, 1963 is set aside and also the order dated the 6th of July, 1963 striking off the appellants' defence. The trial court shall now proceed to decide the suit on the merits after hearing the parties.


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