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Musammat Hummi and anr. Vs. Aziz-ud-din - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All475; 36Ind.Cas.277
AppellantMusammat Hummi and anr.
RespondentAziz-ud-din
Excerpt:
.....section 96, order xvii, rule 6, order xvii, rule 2 - dismissal of suit in absence of defendant--ex parte decree--restoration, application for--remedy--appeal, second, against decree--question of non-appearance at hearing, whether can be considered. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 'where on any day to which the hearing of a suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order ix or make such order as it thinks fit. ' applying the provisions of these two orders to the present case it seems to me that when the defendants failed to appear, it was the..........assuming that that decree was a decree ea parte, an appeal lay to the district judge from the ex parte decree under the provisions of section 96 of the code of civil procedure. such an appeal was preferred by the present appellants and the learned judge went into the merits and came to the conclusion that the decree of the court of first instance, upon the evidence before the court, was correct. the present appeal which is a second appeal from that decree is, therefore, without any merit. if it be said that the decree made by the munsif, was not a decree ex parte the same result follows, as on the merits the learned judge of the court below found that the appellants had no case and the claim of the plaintiff was established. in this view i do not deem it necessary to decide whether the.....
Judgment:

Henry Richards, C.J.

1. The facts out of which this appeal arises are shortly as follows. The suit was one for possession of a house. The 15th of September 1914 was fixed for the hearing. On that day the case was adjourned for the convenience of the Court. The 3rd of December was fixed for the adjourned hearing. On that day the plaintiff was not ready and asked for an adjournment. This application was granted and the 19th of January 1915 was fixed. Upon that day the plaintiff appeared with his witnesses. Some witnesses for the defence had been summoned, but neither the defendants nor their Pleader attended. The Court thereupon heard evidence on behalf of the plaintiff sufficient in its opinion to justify a decree being granted. Later on in the afternoon an application was made on behalf of the defendants for restoration of the case. On the 6th of February this application was refused, the Munsif being of opinion that lie had no jurisdiction to restore the case. The defendants preferred two appeals, one against the decree and one against the order rejecting the application for restoration. Both these appeals were heard at the same time. The learned District Judge dismissed the appeal against the order rejecting the application for restoration, on the ground that the defendants had no sufficient cause for their absence. He also dismissed the appeal against the decree. The present second appeal is against the decree of the District Judge dismissing the appeal against the original decree. It is contended that the Munsif ought not to have disposed of the case in the absence of the defendants, and it is also contended that it was open to the defendant in the lower Appellate Court as also in this Court to prosecute his appeal upon this ground. In my opinion this contention is not correct. Order XVII, Rule 2, provides as follows: 'Where on any day to which the hearing of a suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit.' Order IX, Rule 6, provides as follows: ' Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it be proved that the summons was duly served, the Court may proceed ex parte.' Applying the provisions of these two Orders to the present case it seems to me that when the defendants failed to appear, it was the duty of the Munsif to hear sufficient evidence on the plaintiff's side to justify the granting of the relief claimed and pressed for. Order IX Rule 13, provides that 'in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order setting it aside.' In my opinion once the Munsif had made the decree in the absence of the defendants, he must be deemed to have passed his decree ex parte and if the defendants complained that the decree should not have been made in their absence, the only remedy was to apply to have it set aside and the case restored. They could, no doubt, challenge the decree by way of appeal (Section 96) upon the ground that the evidence which the plaintiff had adduced was not sufficient to justify the decree, but they were not entitled in an appeal from the decree to go into any question connected with their non-appearance at the hearing. Section 96 must be read in conjunction with the rules. The Munsif, upon the application being made to set aside the decree, ought to have heard the application upon its merits and to have decided whether or not the defendants had sufficient reason for being absent. If the Munsif decided against restoring the -case then an appeal lay to the District Judge. On the other hand, if he had restored the case no appeal lay and the case would have been re-heard. It seems to me obvious that the proper way for the defendants to have the question that their absence could be justified decided was by an application for restoration. If the Munsif decided against them they had an appeal. They ought not to have this remedy and at the same time to be able to raise the same question by appeal against the decree itself. In my opinion the present appeal is without force and should be dismissed with costs.

P.C. Banerji, J.

2. I also am of opinion that this appeal should be dismissed. The appeal has been preferred against the decree of the Court below, dismissing the appeal which the appellants preferred to that Court from the decree of the Court of first instance. Assuming that that decree was a decree ea parte, an appeal lay to the District Judge from the ex parte decree under the provisions of Section 96 of the Code of Civil Procedure. Such an appeal was preferred by the present appellants and the learned Judge went into the merits and came to the conclusion that the decree of the Court of first instance, upon the evidence before the Court, was correct. The present appeal which is a second appeal from that decree is, therefore, without any merit. If it be said that the decree made by the Munsif, was not a decree ex parte the same result follows, as on the merits the learned Judge of the Court below found that the appellants had no case and the claim of the plaintiff was established. In this view I do not deem it necessary to decide whether the decree made in the suit was what is called a decree ex parte. Were I to express an opinion on the point I should have no hesitation in concurring with the learned Chief Justice that under Order XVII, Rule 2, the procedure which the Munsif ought to have followed was that prescribed by Order IX, Rule 6, and the Munsif should have decided the case in the absence of the defendants upon such evidence as the plaintiff adduced. In that case the defendants would be entitled to apply for the setting aside of the ex parte decree under Rule 9, Order XIII. As they made such an application, the Munsif ought to have entertained it and considered whether the defendants had sufficient reason for their absence at the hearing of the suit. However, that question does not arise in the present appeal. They also had the right to appeal on the merits from the ex parte decree and they preferred the appeal with which we are concerned in this case. For the reasons I have already stated this appeal must fail.

3. The order of the Court is that the appeal is dismissed with costs.


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