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Narbada Prasad Vs. Awadesh Narain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 743 of 1971
Judge
Reported inAIR1973MP179; 1973MPLJ534
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rules 2 and 3; Constitution of India - Article 141
AppellantNarbada Prasad
RespondentAwadesh Narain
Appellant AdvocateJ.K. Agnihotri, Adv.
Respondent AdvocateM. Yunus, Adv.
DispositionRevision allowed
Cases ReferredBench. (See Jamila v. State
Excerpt:
- - jal narayan, 1971 mplj 916 =(air 1972 madh pra 8) where, on a reference made by a learned single judge, the division bench held as follows :it is order 17, rule 2, which applies to every case of non-appearance of the parties on an adjourned hearing, irrespective of whether the hearing had been adjourned at the instance of a party for production of evidence or the like, and even if such default, as is spoken of in order 17, rule 3, is coupled with the default of appearance .rule 3 of order 17, applies where a party is present and has committed the default referred to in the rule. in our opinion, the mere fact that the counsel for the litigant party was busy in some other court could not be a good and sufficient reason for his default of appearance in the court when his case was.....shiv dayal, j.1. this revision is against an order dismissing the defendant's application under order 9, rule 13, civil p. c. in the trial court, december 17, 1970, was fixed for evidence of the parties. the plaintiff produced his evidence and closed it. the defendant did not produced any on that date, but sought an adjournment, which was opposed by the plaintiff. it was allowed on the condition that the defendant would pay rs. 25/- as costs. on february 4, 1971, which was fixed for the defendant's evidence, the plaintiff appeared but the defendant did not appear. his counsel reported no instructions. the trial court then proceeded under order 17, rule 3, civil p. c., and pronounced the judgment then and there. the claim of the plaintiff was decreed.2. the defendant made an application.....
Judgment:

Shiv Dayal, J.

1. This revision is against an order dismissing the defendant's application under Order 9, Rule 13, Civil P. C. in the trial Court, December 17, 1970, was fixed for evidence of the parties. The plaintiff produced his evidence and closed it. The defendant did not produced any on that date, but sought an adjournment, which was opposed by the plaintiff. It was allowed on the condition that the defendant would pay Rs. 25/- as costs. On February 4, 1971, which was fixed for the defendant's evidence, the plaintiff appeared but the defendant did not appear. His counsel reported no instructions. The trial Court then proceeded under Order 17, Rule 3, Civil P. C., and pronounced the judgment then and there. The claim of the plaintiff was decreed.

2. The defendant made an application under Order 9, Rule 13, Civil P. C., for setting aside the ex parte decree on the ground that owing to the illness of his brother, he became late in starting from his village and missed the train which would have brought him to Jabalpur in time. The application was opposed by the plaintiff.

3. The trial Court held that the application under Order 9, Rule 13, Civil P. C., was not tenable inasmuch as the Court had proceeded under Order 17, Rule 3, when it passed the ex parte decree. It observed that the only remedy was by way of an appeal from the ex parte decree.

4. Aggrieved by the dismissal of his application under Order 9, Rule 13, Civil P. C., the defendant preferred an appeal under Order 43, Rule 1 of the Code. The appellate Court held that as the suit had been disposed of by the trial Court under Order 17, Rule 3, Civil P. C, the application under Order 9, Rule 13 of the Code, did not lie. It is against the appellate order that this revision was filed by the defendant.

5. Shri Agnihotri, learned counsel for the petitioner, relies on Madanlal v. Jal Narayan, 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) where, on a reference made by a learned single Judge, the Division Bench held as follows :--

'It is Order 17, Rule 2, which applies to every case of non-appearance of the parties on an adjourned hearing, irrespective of whether the hearing had been adjourned at the instance of a party for production of evidence or the like, and even if such default, as is spoken of in Order 17, Rule 3, is coupled with the default of appearance .....Rule 3 of Order 17, applies where a party is present and has committed the default referred to in the rule. This rule does not apply to a case where Rule 2 applies. Rule 3 contemplates the presence of the parties.....Where in spite of non-appearance of a party, the Court proceeds under Rule 3 and even if it expressly men-tions that rule in its order, the aggrieved party is entitled to treat that order as one under Rule 2 and take recourse to the remedy under Order 9.'

That decision applies to the present case on all fours on the question whether the petitioner's application under Order 9, Rule 13, Civil P. C., was maintainable. In the present case, the defendant did not appear on the date of hearing and his counsel appeared merely to inform the Court that he had no instructions so that the Court would not wait for him; it was not as if the counsel sought an adjournment and then withdrew from the case after it was refused. This being the position, the trial Court must be deemed to have proceeded under Order 17, Rule 2, Civil P. C. Even if it mentioned Order 17, Rule 3, in its order, it must, in the eye of law, be read as one under Order 17, Rule 2. Therefore, following the above Division Bench decision, it must be held that the ex parte decree passed by the trial Court was under Order 17, Rule 2, Civil P. C., and not under Rule 3.

6. Therefore, the petitioner's application under Order 9, Rule 13, Civil P. C., was competent.

7. Learned counsel for the respondent has relied on an observation in Smt. Sitabai v. Smt. Vidhyawati, 1972 MPLJ 510 = (AIR 1972 Madh Pra 198), in support of his contention that the decree could not be set aside on an application under Rule 13 of Order 9, Civil P. C. I have gone through that decision with the utmost care. It is quite clear that it is not a precedent for that proposition. In that case : (1) After the plaintiffs' evidence had been recorded, the defendant applied for an opportunity to adduce evidence. It was allowed subject to payment of Rs. 50/- as costs. After few adjournments, when the case came up for hearing on 27-6-1968, the defendant was absent and no witness was present on her behalf. The Court, therefore, ordered that the case of the defendant be closed and fixed the case for arguments. After hearing the arguments, the learned Additional District Judge, on 20-7-1968, delivered the judgment, decreeing the suit of the plaintiff non-applicant. (2) On 19-8-1968, an application under Order 9, Rule 13, Civil P. C., was made (M. J. C. No. 18 of 1968), for setting aside the ex parte decree. It was dismissed for default on 27-9-1968. (3) On 6-1-1969, an application under Section 151, Civil P. C., was made (M. J. C. No. 1 of 1969) for setting aside the dismissal of M. J. C. No. 18 of 1968. It will, hereinafter, be called application No. I. It was dismissed on 3-1-1970 fop want of prosecution. (4) On 5-1-1970, another application under Section 151, Civil P. C., was made (M. J. C. No. 3 of 1970) for setting aside the dismissal of M. J. C. No. 1 of 1969. This last mentioned application (which will, hereinafter, be called application No. II) was dismissed on 2-9-70, on the ground that there was no excuse for the counsel's non-appearance or not making a suitable arrangement. (5) The Civil Revision, which was heard by this Court, was from the order dated 2-9-1970, which was passed in M. J. C. No. 3 of 1970.

(6) That Division Bench observed :--

'A counsel engaged by a litigant has no right to just absent himself from a Court when the case of his client comes up for hearing. It is his bounden duty to attend that case in the Court or to make such other arrangement as he thinks proper for the proper representation of his client in the Court concerned. In our opinion, for a counsel to absent himself from a Court without informing it either himself or through any other proper person why it was not possible for him to attend the case in that Court was an act of discourtesy in that Court and was inexcusable. The counsel owes a duty not only to his client but also to the Court. Ordinarily, if a counsel expects that he would be busy elsewhere, he should make proper arrangement for the representation of his client in the Court so that his (the client's) case does not go by default. But, if for some unavoidable reason this were not possible, the least that he was expected to do was to inform the Court the reason for his inability to attend to his case in that Court and to take leave from the Court for his unavoidable absence. In our opinion, the mere fact that the counsel for the litigant party was busy in some other Court could not be a good and sufficient reason for his default of appearance in the Court when his case was called. Such absence was not only unfair to the client whose interest the counsel had undertaken to protect but was also unfair and discourteous to the Court. In our opinion, such absence should be severely discountenanced.'

Now, it must be recalled that the revision before this Court was from the order dated 2-9-1970. by which the Additional District Judge had dismissed the defendant's application No. II for setting aside the dismissal of his application No. I which application had been one for setting aside the dismissal of his initial application under Order 9, Rule 13, Civil P. C., for setting aside the ex parte decree. The above observations of this Court concluded the matter. (7) Then, in paragraph 4 of the judgment, there is a casual observation that the decree passed in a suit cannot be set aside by an application under Rule 13 of Order 9 of the Code of Civil Procedure, inasmuch as 'the order had not been passed under Order IX of the Code.' Having made that casual observation, the judgment again takes into consideration the conduct of the defendant. It was pointed out that her first application having been dismissed, she made a second application which was also dismissed in default and her third application was dismissed for reasons given by the Additional District Judge. It was then said :--

'A bare recital of the aforesaid facts amply shows that laches in the conduct of the case by the applicant-defendant were writ large on the proceedings and, under the circumstances of the case, she was not entitled to any discretionary indulgence in her favour under the provisions of the Code of Civil Procedure.'

8. Learned counsel for the respondent relies on the casual observation about the non-maintainability of the application; 'Such a decree could not be set aside by an application under Rule 13 of Order IX of the Code of Civil Procedure.'

9. From the above narration, it is as clear as broad day light that the judgment fa Smt. Sitabai's case, 1972 MPLJ 510 = (AIR 1972 Madh Pra 198) (supra) was pronounced against the defendant on the ground of negligence of her counsel and her own laches, and it was application No. II (M. J. C. No. 3 of 1970) which was before the Court for decision and not the application under Order 9, Rule 13, Civil P. C., and that it was the dismissal of the last mentioned application, which was maintained by this Court. It will presently be seen that the aforesaid casual observation about the non-maintainability of the application under Order 9, Rule 13, Civil P. C., was an obiter dictum, which means an opinion not necessary to a judgment and, therefore, not binding as a precedent.

10. When an opinion is expressed on the tenability of a suit or proceeding, which is not before the Court, the opinion is not the ratio decidendi; it is merely an obiter dictum. This may be illustrated thus. Suppose a suit is instituted against a Municipality for refund of an amount recovered as tax, which is alleged to be not authorised by law, and the suit is dismissed for non-appearance under Order 9, Rule 3, Civil P. C. In a proceeding under Order 9, Rule 4. for restoration of the suit, the Court while dismissing it on merits, because there was no sufficient cause for his non-appearance, further expresses an opinion that the suit itself was not maintainable, firstly, because it was barred by a particular section of tbe Municipalities Act; and. secondly, because of want of notice required under another section of that Act. The plaintiff then brings a fresh suit on the same cause of action, on which the former suit was laid. Now, the opinion expressed in the earlier decision of the Court on the question whether the suit did not lie, or on the question whether a notice was necessary, would be obiter inasmuch as the 'suit' was not before the Court. Those findings would be ratio decidendi, if given in the suit itself, but not in the proceedings under Order 9, Rule 4, Civil P. C. If, in the above illustration, the Court desires to pronounce its decision on those questions of law, so as to make the ratio decidendi, it would be necessary to first restore the suit, then call for its record in exercise of its powers of revision (if it is not barred by the opening clause of Section 115, Civil P. C.), and then dismiss the suit as not maintainable.

11. In Sitabai's case, 1972 MPLJ 510 -- (AIR 1972 Madh Pra 198) (supra) also the High Court, if it desired to lay down the law on the scope and applicability of Rules 2 and 3 of Order 17, Civil P. C., would have allowed the revision, set aside the order of dismissal of application No. II; would have also set aside the dismissal of application No. I and restored the application under Order 9, Rule 13, Civil P. C.; and would have called its record in exercise of suo motu powers of revision under Section 115, Civil P. C.; and then would have held that it was not maintainable. If that had been the decision on the question of maintainability of the application under Order 9, Rule 13, it would have been the ratio decidendi of the case and would have had the effect of a binding precedent. But from the record it is clear that that course was not adopted. The record of that revision (Civil Revision No. 274 of 1971) is before me. It shows that (1) it was filed against the order dated 2-9-1971, a certified copy of which was filed with it. By that order, the trial Court had dismissed the above-mentioned application No. II (M. J. C. No. 3 of 1970), which was the application dated 5-1-1970 under Section 151, Civil P. C., praying that the dismissal of application No. I (M. J. C. No. 1 of 1969) be set aside. (2) Thus, before this Court that was the only matter in revision, (3) The application dated 19-8-1968, which had been filed by the defendant under Order 9, Rule 13, Civil P. C., was not before the Court. The entire order sheet in Miscellaneous First Appeal No. 9 of 1970 (as it was initially filed under Order 43, Rule 1, Civil P. C.) or Civil Revision No. 274 of 1971 (as it was registered eventually) may be reproduced here:--

'22-2-71. Applicant by Shri R. R. Pande, Advocate, who prays for time. Adjourned for one week.

Sd/- R. J. Bhave

Judge

1-4-1971. Applicant by Shri R. R. Pandey, Advocate. He is heard. This appeal be treated as revision. I admit the revision. Let a date for hearing be fixed in office and notice be issued to the respondents on payment of process-fee by the appellant within 10 days.

Sd/- G. P. Singh

Judge.

13-1-72. Shri R. K. Pandey counsel for the appellant. Shri R. P. Verma for the respondent heard. Order passed, signed and dated.

Sd/- T.P. Naik Sd/- R. R. Dube'

Judge Judge

(4) There was no occasion for the Court to consider the distinction between the scope and applicability of Rule 2 and those of Rule 3 of Order 17, Civil P. C. If it had been, the decision in 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) (supra), which has been rendered in the year 1971, would have been cited, as both the counsel who appeared in that case are two of the seniormost Advocates of this Court. It is equally difficult to think that if that question was before the Court for consideration. Mr. Justice R. R. Dube would not have referred to the decision in 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) (supra), he being a member of the Division Bench which decided it, because their Lordships of the Supreme Court have expressed themselves strongly in Mahadeolal v. Administrator General of West Bengal, AIR 1960 SC 936 thus :--

'If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view, the result would be utter confusion.'

And, again in Jaisri v. Rajdewan, AIR 1962 SC 83, their Lordships have observed :--

'When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.....Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled.'

12. The question before the Division Bench in 1972 MPLJ 510 = (AIR 1972 Madh Pra 198) (supra) was whether the dismissal of application No. II (M. J. C. No. 3 of 1970) was erroneous. If the revision had been allowed, application No. I would have been restored. The Division Bench held that the engagement of the counsel in another Court was not a sufficient cause for his non-appearance when application No. I was called on for hearing. The Court further criticised the defendant's conduct and held that he was inexcusably guilty of laches. All this related to the question before the Court. However, a casual observation was made that application under Order 9, Rule 13, Civil P. C, was not tenable when that application was not before the Court and it was 'not necessary to the judgment'

13. Judges sometimes lay down a rule which is irrelevant or is unduly wide. The authoritative influence of a precedent does not extend to such obiter dicta. It is stated in Salmond on Jurisprudence (11th Edition) at page 224 :--

'Although it is the duty of courts of justice to decide questions on principle if they can, they must take care in this formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not lay down principles which are not required for the due decision of the particular case, or which are wider than is necessary for this purpose. The only judicial principles which are authoritive are those which are thus relevant in their subject-matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi and are distinguished from them under the name of dicta or obiter dicta, things said by the way.'

14. Paton, in his Text Book of Jurisprudence (3rd Edition) says :--

'Clearly something said by a Judge about the law in his judgment, which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however presuasive it may be, and it will be described as an obiter dictum.'

(Page 180)

15. In Harbans Singh v. Punjab University, AIR 1964 Punj 456 at p. 460, it was succinctly observed thus :--

'To discover the ratio decidendi of a judicial decision is ethical and is creative evaluation rather than mechanical application of the precedent Not everything contained in a judicial decision is a source of law for later cases.'

In Kanglu v. Chief Executive Officer, Jana-pada Sabha, ILR (1954) Nag 875 = (AIR 1955 Nag 49), the Full Bench observed as follows :--

'Every expression of opinion in a judgment is not a binding authority or a precedent in a subsequent case and that it is open to the Judge dealing with such a case to distinguish for himself between what was and what was not essential to the prior decision.'

It was also said by the Fun Bench that observations of the Judges in a judgment, which are not the foundation of their decision, must be regarded as obiter dicta. Such dicta cannot be regarded as a precedent binding in subsequent case. Nature and sources of the Law by Prof. J. C. Gray, (1921) 2nd Edition, page 193, and Allein's Law in the Making, page 227, were quoted.

16. So also in Seth Bros. v. I. T. Commissioner, ILR (1956) Nag 246 = AIR1956 Nag 84 at p. 86 it was observed :--

'It may be laid down as a general rule that that part alone of a decision of Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy.'

17. Instructive observations were made in Sk. Dawood v. Collector of Central Excise, ILR (1960) Mad 961 = AIR 1961 Mad 1 at p. 5, by a Full Bench :--

'The perogative of Judges is not to make law by formulating and declaring it--this pertains to the legislature--but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is not of binding authority.'

So also a Full Bench of the Hyderabad High Court said in S. Eshwarayya v. Devi Singh, ILR (1953) Hyd 510 - (AIR 1953 Hyd 289 at p. 291) :--

'If a conclusion was not necessary on the particular facts as found, it is obvious that any principle enunciated, which does not arise on the said facts, can only be treated as an obiter dictum.'

18. In Nathmal v. Kunjilal, 1960 Jab LJ 209 = (1960 MPLJ 331), in an appeal under Order 43, Rule 1, Civil P. C., against an order dismissing the plaintiff's suit on the ground that the dismissal was the result of fraud practised on the Court, the High Court while dismissing the appeal as not competent under Order 43, Rule 1, observed that the plaintiff may file a regular appeal against the decree framed upon the dismissal of the suit It was held :--

'If there was an observation indicating what the proper remedy was, it was only obiter; it is not binding on the parties or on this Court, nor can it be pressed as a precedent.'

19. The only exception is an obiter dictum of the Supreme Court, which is, for all practical purposes, binding on all Courts and must be followed. This is necessary in the interest of judicial uniformity and judicial discipline. (See Mohandas Issardas v. A. N. Sattanathan, ILR (1955) Bom 318 = AIR 1955 Bom 113.) When the Supreme Court deliberately pronounces upon a question with the intention of settling the law, the pronouncement is binding on all Courts by virtue of Article 141 of the Constitution. It cannot be treated as mere obiter dictum. But that rule does not apply to a decision of a High Court.

20. From the above discussion and on high authority, it must be said that the casual observation in 1972 MPLJ 510 = (AIR 1972 Madh Pra 198) (supra), that the decree could not be set aside on an application under Rule 13 of Order 9, Civil P. C. was merely an obiter dictum, which expression literally signifies 'a statement by the way'; or 'a remark by the way'; or, as defined in Jowitt's Dictionary of English Law, 'an observation by a Judge on a legal question suggested by a case before him but not arising in such a manner as to require a decision by him. It is, therefore, not binding as a precedent on other Judges, although it may be entitled to more or less respect', (page 628). The only decision, therefore, to be followed is 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) which Was rendered on a reference made to the Division Bench on the specific question. And, following that decision, I have already held that, in the present case, the revision-petitioner's application under Order 9, Rule 13, Civil P. C., was competent. In this view of the matter, it is unnecessary to go into the question of inconsistency between the later decision, 1972 MPLJ 510 = (AIR 1972 Madh Pra 198) (supra) and the earlier decision in 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) (supra), about which Salmond says :--

'Whenever a relevant prior decision is not cited before the Court, or mentioned in the judgment, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later Court.'

(page 206, 11th Edition) And, it was said in ILR (1954) Nag 875 = AIR 1955 Nag 49 (supra) as follows :--

'When a decision is given by a Court 'per incuriam' it is not binding on a subsequent Court:-- Young v. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718 and the opinion of Denning, L. J., in Gower v. Gower, (1950) All ER 804.'

When there is a conflict between the ratio decidendi of a Division Bench decision and the ratio decidendi of another Division Bench decision, both being binding precedents, a Judge sitting singly must refer the question for decision by a larger Bench. [Per Mahadeo-lal v. Administrator of W. B. (supra)]. But, when there is a conflict between the ratio decidendi of a Division Bench and obiter dicta of another Division Bench, the latter being not a binding precedent, a Judge sitting singly is free to follow the former and he need not refer the question for decision by a larger Bench. (See Jamila v. State, 1959 MP LJ (SN) 159).

21. The conclusions reached above may be summed up thus :--

(1) Every expression of opinion in a judgment is not a binding authority or a precedent. Not everything contained in a judicial decision is a source of law for later cases.

The ratio decidendi of a case alone is binding upon Courts of co-ordinate jurisdiction and inferior Courts. Ratio decidendi is the enunciation of the reason or principle (one or more) upon which the question before the Court has really been determined. ILR (1954) Nag 875 = AIR 1955 Nag 49 (FB) and ILR (1956) Nag 246 = AIR 1956 Nag 84.

(2) Statements which are not necessary to the decision, which go beyond the occasion, and lay down a rule that is unnecessary for the purpose in hand, are termed obiter dicta. They have no binding authority on any Court, though they may have some merely persuasive efficacy. (ILR (1956) Nag 246 = AIR 1956 Nag 84).

(3) In 1972 MPLJ 510 = (AIR 1972 Madh Pra 198) :

(i) The only question before the High Court was whether there was sufficient cause for allowing the defendant's application (M. J. C. No. 3 of 1970) under Section 151, Civil P. C. (which application was made for setting aside the dismissal for default of the defendant's earlier application, M. J. C. No. 1 of 1969, under Section 151, Civil P. C). If the High Court had allowed the revision, the application (M. J. C. No. 1 of 1969) alone would have been restored. The defendant's application, M. J. C. No. 18 of 1968, (under Order 9, Rule 13) was not before the High Court.

(ii) The distinction between the scope and applicability of Rule 2 and those of Rule 3 of Order 17, Civil P. C., was not for consideration before the High Court, nor was it considered by the High Court.

(iii) The ratio decidendi of the High Court decision was that the absence of the defendant's counsel, when M. J. C. No. 1 of 1969 was called on for hearing, was inexcusa-able; and the laches in the conduct of the defendant did not entitle her to any discretionary indulgence.

(iv) A casual observation that the ex parte decree passed in the suit (when neither the defendant nor her counsel had appeared) could not be set aside on an application under Order 9, Rule 13, Civil P. C, was merely an obiter dictum. It is not binding on any Bench of the High Court, or on any subordinate Court.

(4) If, while dealing with a case, a Judge, sitting singly, discovers that there is a conflict between the ratio decidendi of a Division Bench decision and the obiter dictum in another Division Bench decision, the latter being not a binding precedent, he is free to follow the former and he need not refer the question for decision by a larger Bench. (1959 MPLJ (SN) 159).

22. This brings me to the merits of the present case. The trial Court and the appellate Court, after having held that the application under Order 9, Rule 13, Civil P. C., was not tenable, and consequently the appeal before the appellate Court was not competent, expressed some opinion on the merits, but it must be taken to be half-hearted. The appellate Court emphasised an anomaly in the dates given by the petitioner in his deposition, but it did not notice that there was an obvious confusion in the recording of his deposition as regards the dates and that the trial Court was, to a great extent, responsible for the confusion. At one place, the trial Court has recorded in his deposition that 'on the 30th or 31st February, I had gone to my village to see my brother.' The witness could not have given these dates, but if he had, it was the duty of the trial Court to draw his attention to the fact that there is no 30th or 31st day in the month of February. It is the duty of the trial Court to record evidence of a witness intelligently and not like a machine. The real question before the Court was whether due to serious illness of the petitioner's brother, he could not catch the connecting train. To send back the case to the trial Court or the appellate Court would be unnecessary waste of time. I would, therefore, deal with the matter on merits here.

23. The defendant's case, as set out in the application under Order 9, Rule 13, Civil P. C., and as supported by his deposition, is that having received information of the serious illness of his brother, who resides in another village (Charkhari, tahsil Beohari, District Shahdol), the petitioner went there to see his brother. He wanted to go to Jabalpur directly from Charkhari, but as the Shahdol railway station is about 50 miles from that village and there was no conveyance available on the evening of the 3rd February and the following morning to reach Shahdol railway station in time so as to catch the connecting train, he was prevented from reaching Jabalpur on the date of hearing. The dates he has given no doubt create some confusion. If the petitioner had said what was really recorded by the trial Court, then he was bound to reach Jabalpur on the night of the 3rd February, but he was never confronted with that situation.

24. The defendant produced Narayan, his brother-in-law, to corroborate him. Narayan stated that Narbada Prasad's brother, who lives in Charkhari, fell ill and he was asked to proceed to Charkhari as soon as possible. The witness accompanied Narbada Prasad to Charkhari, where he found Narbada Prasad's brother lying ill. Thus, Narbada Prasad is supported by this witness.

25. In rebuttal, the plaintiff examined himself. He said two things to destroy the evidence of the defendant; (1) He himself saw the defendant at the Jabalpur railway Station on the evening of the 3rd February; and (2) the defendant's brother had not fallen ill and that Narbada Prasad did not go to see his brother. Both these parts of his statement occurred in his examination-in-chief. By the first part, the plaintiff wanted to tell the Court that Narbada Prasad having arrived at Jabalpur on the evening of the 3rd, he could have appeared in the Court on the 4th February. It is not as if he was giving this evidence on the basis of information received from a third person. Now, the first part of his statement has been shown to be false in cross-examination, where he admits that he did not say so in the reply which he had filed to the defendant's application under Order 9, Rule 13, Civil P. C.; nor had he said so in his affidavit. He was then asked whether there was any one else at the railway station. The plaintiff said that there was no one. Regarding the second part also, he proved himself to have spoken a lie, when in cross-examination he admitted that he did not go to Charkhari, and further that he did not see Narbada Prasad's brother on or about the relevant date. He had further to admit that he did not know where Narbada Prasad was on the 4th February.

26. Thus, there was no reason to disbelieve the defendant, particularly when false evidence was produced in rebuttal. The learned Judge of the appellate Court did not look at the evidence of Narayan; nor did he pay any attention to the cross-examination of the plaintiff. This was naturally so because he was of the view that the defendant's application for setting aside the ex parte decree was not competent.

27. I am, therefore, of the opinion that the defendant should be believed regarding his brother's illness and his having gone to village Charkhari to see his brother, and further to have missed the connecting train, which would have brought him to Jabalpur in time. He should be believed when he says that he could reach Jabalpur on the 5th February only, and when he contacted his counsel, he was told that the case had been proceeded with ex parte. The ends of justice require that the defendant petitioner should not be denied substantial justice but should be given an opportunity to defend the plaintiff's claim on merits. The latter can be compensated by costs, having regard to the value of the suit, which is Rs. 1,000/-.

28. The revision is allowed. The orders of the trial Court and the appellate Court are set aside. The ex parte decree passed in the suit is also set aside. The defendant shall pay to the plaintiff Rs. 75/- as costs. Parties shall bear their own costs in all the Courts in the proceedings for setting aside the ex parte decree. The case shall go back to the trial Court to proceed with the trial of the suit from the stage when the ex parte proceedings were taken against the defendant.


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