1. This is a miscellaneous appeal by the defendant from an order under Order 9 Rule 13 Civil Procedure Code. Though the order, as originally made was substantially in favour of the defendant applicant, it failed to benefit him on account of a condition that he should give security for the suit amount, which he did not implement. Actually, the Court had prescribed a time limit before which (sic) (the security had to be given.) Defendant had prayed for the deletion of the condition in review, but this being refused, the original order ceased to be operative.
Another piece of confusion is that, in the interval, the decree-holder has put the ex parte decree into execution and has attached certain properties; a reference has been made to this, but it is irrelevant for the consideration of the present appeal.
2. The points for decision are primarily, whether in the absence of a finding in regard to the service or failure of service of the summons of notice, it was a proper exercise of discretion for the Court to have imposed this condition. Secondly, whether it was really a consent order, in that the defendant himself agreed to furnish security in return for the setting aside of the ex parte decree without going into the evidence. Thirdly, whether some order should be passed by this court on merits or the matter should go back to the trial court for a proper decision on merits of the allegations in the defendant's application for setting aside the ex parte decree.
The difficulty is that, for one thing, the litigation itself has been very much prolonged, and, for another, this comparatively simple matter has come up for hearing after about four years. Still, if there is case, on legal grounds, to go back, the parties will have to court this additional inconvenience.
3. The facts relevant for the present proceeding are the following : The respondent brought a suit for a claim of money (about Rs. 16000/-). It is stated that the same had been the subject-matter of another suit and an ex parte decree in the erstwhile province of Bombay with reference to which Ujjain, in the erstwhile Gwalior State, was foreign territory. A fresh suit was brought at this end which, for various reasons, had already dragged on for more than a quarter of a century when an ex parte decree was passed against the defendant on 12-2-1954.
There have been allegations and counter allegations in regard to the service of a summons ornotice on this occasion, and though Shri Sanghi, appearing for the respondent has taken us through the evidence in this regard, in view of the order I propose to make, I am avoiding any discussion on merits. On 13th March, 1954 the defendant appellant filed an application for setting aside that decree alleging the absence of summons. As against it, the plaintiff's averment is that they had been served by affixing on the residence, and by publishing in a newspaper usually read at Ujjain where the defendant was living. What happened when it came up for final hearing on 15th February, 1956, is not clear.
If there had been straightforward petitions by either party, the matter would have been simple; but actually there are no petitions but a statement in the order-sheet as to what either party stated. It is reported that the plaintiff was prepared to accept the defendant's position provided that the latter gave security for the claim. The obvious advantage for the decree-holder would be that instead of running after the defendant alone, he could, if occasion arose, realise from the surety. There is no petition by the defendant agreeing to this, but presumably, the court thought so from some statement at the bar on his behalf. Accordingly it ordered :
'The application for setting aside of the decree is allowed on this condition precedent that the applicant shall give security within fifteen days for the amount under claim. The case should be put up on 7-3-1955.'
4. Later on, in course of the day, the defendant filed a petition for the review of the order by the deletion of the condition. In effect, he wanted an unconditional order setting aside the ex parte decree. This matter was posted for hearing, and actually came up for disposal well after the due date for the execution of the security bond as condition precedent, in the meanwhile no order being passed in the case. On 23-3-1956, the Court rejected the review petition. Since the condition precedent had not been fulfilled, the application was deemed to have been dismissed (Na Manjoor Samjhi Jawe). From this order, the defendant has come up in appeal.
5. The first question is whether limitation for his appeal starts from 15-2-1956, or from 1-3-1956, which was the due date for the bond, or from 23-3-1956 on which date it was 'deemed to have been' dismissed. In the circumstances of the case, an order was necessary, on non-compliance with the condition precedent that the application was actually dismissed. This was made only on 23-3-1956. The position would have been different if the order of 15-2-1956 had itself mentioned that on failure to comply with the condition precedent, the application would be deemed to have been dismissed, in which event, limitation would be started from 1-3-1956. So, there is no difficulty for the appellant on this ground.
6. The appellant does not question that the court is competent under Order 9 Rule 13 or as for that (in the similar case under Order 9 Rule 9 as well), to impose condition in regard to security. The rule itself speaks 'may set aside the decree ..... uponsuch terms as to costs, payment into Court, or otherwise as it thinks fit'. A condition like this comes under 'otherwise'. But the defendant contends that on principle, the Court should not affix any condition onerous on the defendant unless it finds that he was at fault; that is to say, it can be imposed only if the defendant has been guilty of some omission,which, however, the Courts find not serious enough to justify the maintenance of the ex parte decree.
Stated thus, this principle is almost obvious; there is case law; but it need not be discussed, as it enunciates only the principle that no litigant should be burdened unless found to be at fault. If there has been no due service of summons, the defendant is not to blame and unless he acquiesces, the order under Order 9 Rule 13 should be unconditional. Thus, in every case where the propriety of imposing a condition and its reasonableness are in issue, the question would be, is the defendant negligent in some measure at least and, is the condition proportionate to the seriousness of the omission?
7. Applying this principle to the present case, one finds that the acquiescence is not clear because immediately or soon after the passing of the order, the defendant put in his application questioning the propriety of imposing the condition. No doubt, it is conceivable that the defendant having secured an initial advantage from the offer of the plaintiff, was trying to go back and ask for more. But one can never be certain because there was no written petition or offer on his part.
Conceivably, the plaintiff who had already been litigating in that court for 32 years, was sick of the whole affair, and agreed to let the ex parte decree be set aside if security could be given. From his view-point, this is quite understandable because he had already attached some properties in execution of the decree, and if that decree was to be set aside and that attachment automatically vacated he would like to have some other security. We have no record of what was stated on behalf of the defendant, and as it shaped, the defendant denied accepting this offer, and the plaintiff is unable to confront him.
The position is unfortunate, and only emphasises that the court should not fall into a trap whether intentional or inadvertent, and any otter made by parties should be got in writing, where misunderstanding is probable. We do not know if there had been due service of the notice, or the defendant had made any omission, and was, as such, liable to a condition in return for the setting aside of the decree.
8. In these circumstances, the only proper course is to set aside the orders passed by the court on 15-2-1956 and 23-3-1956, and direct it to investigate without any more avoidable delay, the allegations in regard to the failure of the plaintiff to serve notices. I may not be understood to hold that the parties cannot come to terms in such proceedings as to the setting aside of the decree on condition precedent, but the court should have a clear written record of the parties' agreement so that there could be no mistake or inadvertence and interested parties may also not play fast and loose.
9. The application is allowed. In the circumstances of the case, the parties shall bear their own costs
10. I agree.