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A.H. Ghaznavi and anr. Vs. Sardar Gurcharan Singh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All691
AppellantA.H. Ghaznavi and anr.
RespondentSardar Gurcharan Singh
Excerpt:
.....that revision is not entertainable where an appeal lay to the high court and this provision clearly contemplated a case where no appeal lay either in the form of a first appeal or a second appeal from a decree or from an interlocutory order under section 104 and order 43, civil p......1935 confirming an order of the civil judge dated 18th february 1933 refusing to set aside an ex parte decree dated 20th august 1931. it is contended before us on behalf of the applicants that the courts below have acted illegally and with material irregularity in the exercise of their jurisdiction in not setting aside the ex parte decree inasmuch as the applicants were prevented by sufficient cause from appearing when the suit was called on for hearing on 20th august 1931. courts below have considered the excuse offered by the applicants for their absence on 20th august 1931, and they have come to the conclusion that there was no sufficient cause for their absence, the question whether a litigant was prevented by sufficient cause from appearing when the suit was called on for hearing.....
Judgment:
ORDER

1. This is an application in revision against an appellate order of the District Judge dated 26th April 1935 confirming an order of the Civil Judge dated 18th February 1933 refusing to set aside an ex parte decree dated 20th August 1931. It is contended before us on behalf of the applicants that the Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction in not setting aside the ex parte decree inasmuch as the applicants were prevented by sufficient cause from appearing when the suit was called on for hearing on 20th August 1931. Courts below have considered the excuse offered by the applicants for their absence on 20th August 1931, and they have come to the conclusion that there was no sufficient cause for their absence, The question whether a litigant was prevented by sufficient cause from appearing when the suit was called on for hearing is essentially a question of fact, and this Court cannot interfere in its revisional jurisdiction when the Courts below have come to the conclusion that the litigants were themselves to blame for not appearing before the Court.

2. On the materials in the shape of affidavits placed before the trial Court, the con. elusion at which that Court arrived was that if the applicants were pre-occupied with other business and could not attend Court, an intimation ought to have been given in time to counsel to apply for adjournment and that there was nothing from which one could say that information regarding the date fixed for hearing was not received by counsel or by the parties in proper time. An affidavit however has been filed before us, and even if we were inclined to admit additional evidence in revision, all that we can say is that up to about 13th August 1931 both the defendants came to know that the date fixed for the hearing of the case was 20th August 1931 and within that week the defendants ought either to have appeared in person and filed their written statements or should have given full instructions to counsel in the matter. It is impossible for us in revision to say that the Courts below were in error even on a question of law, much less that they usurped jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of their jurisdiction.

3. It should also be borne in mind that out of the various remedies which an aggrieved party has when an ex parte decree has been passed against him, the applicants in the present case adopted the remedy open to them under Order 9, Rule 13, Civil P.C., and that being so, they must comply with the conditions laid down in that Order. It was held by a Pull Bench of the Madras High Court in Gadi Neelaveni v. Narayana Reddi A.I.R. 1920 Mad. 640, that a Court has no power, apart from the provisions of Order 9, Rule 13, Civil P.C., to set aside an ex parte decree passed by itself. The same view was taken by this Court in Kallu v. Nadir Bakhsh A.I.R. 1922 All. 441, where Walsh and Wallach, JJ. observed:

The only justification for an order setting aside an ax parte decree is the provision contained in Order 9, Rule 13, Civil P.C., under which the applicant must satisfy the Court that the summons was not duly served or that he was prevented by sufficient cause from appearing. If neither of these conditions occur, the Court has no jurisdiction to pass an order setting aside the ex parte decree.

4. We might also refer that in Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 , Sen, J., delivering the opinion of the Full Bench, observed:

If Order 9, Rule 13 applied to the case, the applicants had to satisfy the Court (1) that the summons was not duly served or (2) that they were prevented from appearing for sufficient cause. Neither of these conditions having been fulfilled, the Munsif had no jurisdiction to set aside the decree and restore the suit.

5. In the case Ram Sarup v. Gaya Prasad : AIR1925All610 , after the decision of the Full Bench that the High Court can interfere in revision with an appellate order directing the setting aside of an ex parte decree, when the matter came before the Division Bench and it was argued that the Court had inherent jurisdiction to set aside an ex parte decree, it was held that a Court has no jurisdiction outside the provisions of Order 9, Rule 13, to set aside an ex parte decree. The position, therefore, is that the applicant who is applying for the setting aside of an ex parte decree must satisfy either that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case it is conceded that the summons was duly served, but all that is contended is that the applicants were prevented by sufficient cause from appearing when the suit was called on for hearing, and as we have mentioned before, there is a clear finding of the Courts below that the applicants were themselves to blame in not attending the Court when the suit was called on for hearing. That being so, if the case is to be dealt with as an application for the setting aside of an ex parte decree, there are no merits in the case, and the application must be dismissed.

6. It is, however, argued that the present application before us might be converted into an application for revision against the original ex parte decree of the Civil Judge dated 20th August 1931. The application having been filed late in 1935, the first objection that can be advanced against the maintainability of the revision is that it is belated, and we agree with learned Counsel for the opposite party that it will not be proper after this lapse of time to entertain such an application but even if some indulgence can be allowed because the applicants were pursuing a different remedy, another preliminary objection is raised on behalf of the opposite party, and it is that the case does not fulfil the requirements of Section 115, Civil P.C. The decree that was passed by the trial Court on 20th August 1931 could come before this Court in second appeal, and therefore this is not a case which has been decided by any Court subordinate to the High Court and in which no appellies thereto. In Beni Madho Ram v. Mahadeo Pandey : AIR1930All604 , a Bench of this Court held that there is no ground for restricting the scope of the words 'in which no appeal lies thereto' to cases where no appeal lies direct to the High Court from the order sought to be revised, and so long as the party has a right to come up to the High Court by way of an appeal and has failed to avail himself of that opportunity by first going up to the District Judge and then coming up to the High Court, he cannot ask the High Court to interfere in revision. This is exactly what has happened in the present case. The applicants, if they were aggrieved by the ex parte decree and if they thought that on the date when the Civil Judge proposed to dispose of the suit on the merits ex parte he should not have done so, ought to have appealed against the decree to the District Judge and should, if necessary, afterwards have come to this Court. That remedy being open to them, it cannot be said that no appeal lay to the High Court in the case which was decided by the learned Civil Judge on 20th August 1931. In Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 , when the Full Bench was considering the soope of Section 115, Civil P.C., it was observed that the section itself provides that revision is not entertainable where an appeal lay to the High Court and this provision clearly contemplated a case where no appeal lay either in the form of a first appeal or a second appeal from a decree or from an interlocutory order under Section 104 and Order 43, Civil P.C. The above authorities make it quite clear that no revision lies from the decree dated 20th August 1931.

7. Our attention was drawn to the ease in Mahadeo Prasad v. Khubi Ram : AIR1929All793 . That was a case in which the trial Court rejected an application under Order 21, Rule 90, and the District Judge confirmed that order. This Court in revision interfered with the order of the trial Court, because this Court was of the opinion that the trial Court had acted with material irregularity in the exercise of its jurisdiction, and it was held that it was open to the High Court to revise the order of the trial Court, although the application in revision was against the order of the District Judge. It may be observed that the order which was revised could not come up in appeal to the High Court at all except through an application in revision and the case, therefore, has no bearing to the facts of the present case. The case in Lila v. Mahange : AIR1931All632 , was also brought to our notice, but that again has not much application to the facts of the present case and, if anything, goes against the contention of the applicants, because it was held therein that as a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court, but the learned Judges observed that it could not be laid down as a general proposition that the High Court had no power of interference at all or should not interfere where there was another remedy by way of a suit open to the applicant. It would thus appear that we could not interfere in revision and set aside the ex parte decree dated 20th August 1931. For the reasons given above, we dismiss this application with costs.


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