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Smt. Batual Fatima Vs. Mohd. Qasim - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1318 of 1977
Judge
Reported inAIR1979All102
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152 - Order 17, Rule 3; Allahabad High Court General (Civil) Rules, 1957 - Rules 585 and 586
AppellantSmt. Batual Fatima
RespondentMohd. Qasim
Advocates:R.H. Zaidi, Adv.
DispositionPetition allowed
Excerpt:
.....rules (civil), 1957 - costs awarded in an ex-parte decree corrected by trial court - alleged that costs should be awarded under rule 585 as it is not an ex-parte decree - decree given on grounds of failure of plaintiff to produce evidence does not amount to ex-parte decree - costs to be awarded as in case of a contested case. - - the plaintiff's contention has been upheld by the civil judge as well as by the additional district judge in revision. these facts clearly show that the plaintiff, although pre sent in court, did not produce evidence and he failed to participate in the proceedings. in the instant case, the plaintiffs suit was a contested case and the order dismissing the suit with costs was not ex parte as the plaintiff had failed to produce evidence or participate in..........made an application before the civil judge and contended that dismissal of the suit under order xvii rule 3 was ex parte and as such costs and fees should have been calculated in accordance with rule 586 of the general rules (civil) applicable to the subordinate courts. the plaintiff's contention has been upheld by the civil judge as well as by the additional district judge in revision. rule 585 prescribes a scale of rates at which fee is taxable while calculating the costs of the suit in contested cases while rule 586 prescribes rates for costs in cases decided ex parte. both the lower courts have proceeded on the assumption that the order of the civil judge dismissing plaintiffs suit under order xvii rule 3 was in the nature of an ex parte order and it did not amount to decision of.....
Judgment:
ORDER

K.N. Singh, J.

1. This revision application is directed against the order of the Judge, Small Cause Court, correcting the decree passed in suit No. 156 of 1972 and also against the order of the Additional District Judge affirming the trial Court's order.

2. It appears that the plaintiff-opposite party filed a suit in the court of the Civil Judge, Allahabad, for a declaration that he was owner of the house No. 541, Attarsuiya, Allahabad, The suit was however dismissed with costs under Order XVII, Rule 3 of the Civil P. C. The plaintiff filed an appeal before the District Judge which was treated as miscellaneous appeal. The Additional District Judge dismissed the plaintiff's appeal. Thereupon the plaintiff filed a revision in this Court which was dismissed by me on 31st July, 1978. Meanwhile the plaintiff had made an application before the trial Court for correction of the decree. The trial Court has allowed that application and directed for the correction of the decree so far as the costs of the suit was concerned.

3. The plaintiff-opposite party made an application before the Civil Judge and contended that dismissal of the suit under Order XVII Rule 3 was ex parte and as such costs and fees should have been calculated in accordance with Rule 586 of the General Rules (Civil) applicable to the subordinate Courts. The plaintiff's contention has been upheld by the Civil Judge as well as by the Additional District Judge in revision. Rule 585 prescribes a scale of rates at which fee is taxable while calculating the costs of the suit in contested cases while Rule 586 prescribes rates for costs in cases decided ex parte. Both the lower courts have proceeded on the assumption that the order of the Civil Judge dismissing plaintiffs suit under Order XVII Rule 3 was in the nature of an ex parte order and it did not amount to decision of the suit on merits in a contested case. Originally cost had been calculated in accordance with Rule 585 which is applicable to contested cases but on the plaintiff's application both the courts have held that fee should have been calculated in accordance with the rates prescribed in Rule 586 which is applicable to calculation of fees in ex parte cases. The question therefore arises as to whether the dismissal of plaintiffs suit under Order XVII Rule 3 would amount to an order on merits in a contested case or it would be in the nature of an ex parte order.

4. There is no dispute between the parties that the plaintiff-opposite party had filed a suit for declaration of title in respect of the house in dispute. The defendant-applicant filed written statement and contested the suit. Issues were framed and a date for final hearing was fixed. The suit was at one stage dismissed but on the plaintiff's application the ex parte order was set aside and the suit was restored and 19th Jan. 1976, was fixed for final hearing. On that date when the case was called out the plaintiff appeared before the court and after informing the court he went to call his counsel, but thereafter he did not appear. The Civil Judge thereupon dismissed the suit under Order XVII Rule 3 of the Civil P. C. These facts clearly show that the plaintiff, although pre sent in court, did not produce evidence and he failed to participate in the proceedings. The trial court was, therefore, justified in dismissing the plaintiffs suit under Rule 3 of Order XVII.

5. In M. S, Khalsa v. Chiranji Lal (AIR 1976 All 290) (PB) it was held that where a party appears and does not produce evidence or participate in the hearing and the court proceeds with the hearing and decides the case under Order XVII Rule 3, the decision is not an ex parte decision in default of the party concerned. In the instant case, the plaintiffs suit was a contested case and the order dismissing the suit with costs was not ex parte as the plaintiff had failed to produce evidence or participate in the proceedings. I am therefore of the opinion that fee was rightly calculated in accordance with Rule 585 and the courts below acted illegally in holding that Rule 586 was applicable to the case.

6. Learned counsel for the defendant contended that the courts below exceeded their jurisdiction in correcting the decree under Section 152 of the Civil P. C. I find considerable force in the contention. Section 152 confers power on a court to correct error in a decree or order which may have occurred on account of any clerical or arithmetical mistake in the judgment or due to any accidental slip or omission. In the instant case, none of the conditions were satisfied; therefore the courts below acted in excess of their jurisdiction in correcting the decree.

7. In the result the revision succeeds and is accordingly allowed. The orders of the courts below are set aside and the application of the plaintiff stands dismissed.

8. Notice of this revision was sent to the plaintiff opposite party but it was returned back with the endorsement that he has gone to Pakistan. At a subsequent stage fresh notices were issued to the plaintiff-opposite party under registered cover but the same were not received back. Consequently the service was deemed to be sufficient on the plaintiff-opposite party. Moreover the defendant-applicant was directed by this Court to serve notice of the revision personally on the plaintiff-opposite party by obtaining Dasti notices from the office. The defendant-applicant has filed an affidavit stating that the notice was personally tendered to the plaintiff-opposite party but he refused to accept the same. These facts show that the plaintiff-opposite party was not interested in contesting the present proceedings. Since no one has appeared on behalf of the plaintiff-opposite party there will be no order as to costs.


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