1. This is an appeal from an order refusing to set aside an alleged ex parte decree passed against the defendant. The case came up for hearing on 22nd January 1934 when it was adjourned till 19th February 1934. The record kept by the Court below is most confusing. According to the note made by the Judge in English the case was adjourned at the instance of both the plaintiff and the defendant. According to the entry made in the order-sheet the case was adjourned at the request of the plaintiff, while according to paper No. 420, the case was adjourned on a statement having been made by the defendant's counsel that there was a prospect of a compromise, and this was countersigned by the plaintiff's counsel also.
2. It may therefore be taken that the case was adjourned with the consent of both the parties. On 19th February 1934, some time early in the day, a list of witnesses, signed by the defendant's counsel, was filed as required by the proviso to Order 16, Rule 1, under which no party is entitled to call any witness not named in a list, which must be filed in Court before the hearing of evidence on his behalf has commenced, without an order of the Judge. The list of witnesses was filed before even the evidence for the plaintiff had commenced and indeed before even the case was called on for hearing. At 12 a. m. the case was called on for hearing. The plaintiff and his witnesses and his pleader were present, but neither the defendant nor his counsel was present. The Court decided to take up the case on its merits and after recording the evidence for the plaintiff decreed the suit under Order 17, Rule 3. Instead of appealing from the decree passed in the case the defendant applied on that very day to have the decree set aside on the ground that it was ex parte, alleging that he suddenly got a colic pain and had to be taken to a doctor from the Court compound, and produced a medical certificate in proof of that fact. The learned Judge has not gone into the merits of the application and has not decided whether there was or was not sufficient cause for the non-appearance of the defendant and his counsel, but has merely rejected the application on the sole ground that he had no jurisdiction to entertain it. The view expressed by him is that, as the case had already been adjourned at the request of the defendant, Order 9, Civil P.C., was not applicable and he had proceeded under Order 17, Rule 3.
3. Now ordinarily if on a date fixed for hearing the defendant and his counsel do not appear and the plaintiff is present with his witnesses, the Court, if it does not adjourn the case, may proceed to hear it on the merits. If the suit is dismissed, the defendant does not suffer; but the suit cannot be decreed merely because the defendant or his pleader is absent, but must be decided on the evidence produced by the plaintiff. In such a case, although the decree is necessarily one on the merits of the case, the proceedings against the defendant are ex parte and the decree passed against him would also be ex parte within the meaning of Order 9, Rule 13, Civil P.C. If both the defendant and his pleader are absent at the adjourned hearing of the suit then also the proceeding is necessarily ex parte, and it is difficult to hold that Order 9, Rule 13 would be inapplicable. The question really is whether in the circumstances of this case it can be said that neither the defendant nor his counsel was present.
4. It has already been pointed out that the filing of the list of witnesses under the proviso to Order 16, Rule 1 is a necessary preliminary condition for the exercise of the right to call witnesses. The proviso itself lays down that the list must be filed 'before the hearing of evidence on his behalf has commenced.' This list is not to be in the form of an application and there need of course be no prayer contained in it. Accordingly, no court-fee is required for such a list. The object of the proviso is to place on the record a. list of the names of witnesses who are available and not that the Court should be moved before the case is called on for hearing. Order 9, Rule 6 provides that when the plaintiff appears and the defendant does not appear 'when the suit is called on for hearing' then, if it is proved that the summons was duly served, the Court may proceed ex parte. The language of this rule would make it clear that it is only after the suit is called on for hearing that it can be said that the defendant has not appeared, in which event the Court may proceed ex parte against him. No doubt Order 17, Rule 2 does not use the same expression 'when the case is called on for hearing,' but states that:
Where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear, etc.
5. But it would introduce an anomaly if a different practice in this respect were necessary for an adjourned hearing. A party can hardly be said 'to fail to appear' unless he fails to appear when the case is called on for hearing. Mere absence before the case is called on for hearing cannot amount to a failure to appear. It is therefore a fair inference that even in Order 17 the same idea is implied and the failure to appear takes place only when the suit is called on for hearing, even though it be an adjourned date. Now the explanation added to this rule provides that:
No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though only for the purpose of making an application.
6. It means that no one can be regarded to fail to appear when he is present or is represented in Court by an agent or pleader even though the agent or the pleader might have been engaged for the sole purpose of making an application and not producing evidence. It seems to us that what the explanation implies is that at the time when the case is called on for hearing, if either party is present or is represented in Court by an agent or pleader, then he has not failed to appear, but if at that time neither he is present nor he is represented in Court by an agent or pleader he has failed to appear. The mere fact that at an earlier stage something almost mechanical was done by a pleader on his behalf before the case was called on for hearing cannot, in our opinion, amount to either an appearance or being represented 'in Court by an agent or pleader at the time when the case is called on for hearing.
7. The case is really one of first impression and the learned Counsel for the parties have not been able to cite before us any case where a list of witnesses was filed previous to the case having been called on for hearing and it was held either that there was appearance or that there was not. None of the case3 where pleaders appeared for the purpose of filing an application for an adjournment appear to have been cases where an application for adjournment was made before the case was actually called on for hearing. Indeed, if the case has not been called on for hearing it is technically difficult to compel appearance of the counsel for the opposite party who has not had any previous notice of such an application. On the other hand, if the application for adjournment is made or, at any rate, is considered after the case has been called on for hearing, then it is the duty of the opposite party and his counsel to be present before the Court.
8. Having given the case our best consideration we have come to the conclusion that on the whole it would be more consistent with the provisions of Order 9 to hold that the mere filing of a list of witnesses before the case has been called on for hearing does not amount to an appearance within the meaning of the explanation to O.17, Rule 2. In this view the defendant was absent at the time when the case was called on for hearing and therefore the decree passed against him was certainly ex parte and he was entitled as of right to show cause for his non-appearance under Order 9, Rule 13. The learned Judge has therefore erred in holding that he had no jurisdiction to consider the matter. There was certainly a remedy open to the defendant to come up in appeal from this ex parte decree, but that was not his exclusive remedy. We accordingly allow this appeal and setting aside the order of the learned Judge of the Court below send the case back to that Court to restore the application to its original number on the file and dispose of it according to law. The costs of this appeal will abide the event.