(1) This appeal under clause 10 of the Letters Patent raises the question whether the proceedings before the Court of the 29th June 1950 can be regarded as 'hearing' within the meaning of rule 6 of Order 9 of the Code of Civil Procedure.
(2) The facts of the case are simple and not in dispute. On the 3rd August 1949 Sohan Singh and Gopi Nath brought an action for dissolution of partnership and rendition of accounts against defendants, Nos. 1 to 9 and on 29-4-1950 they obtained a preliminary decree against them. One Nathu Lal was appointed a local commissioner to examine the accounts of the partnership and to determine the liability of each of the several partners in accordance with the terms of the preliminary decree. The commissioner was to submit his report on the 25th May 1950, but he was unable to do so and was eventually permitted to present it on the 29th June 1950. The report was duly presented on that day. Defendants Nos. 2 to 9 were absent but the counsel for the plaintiffs and the Mukhtar of defendant No.1, who were present in Court, accepted the report, and the Court accordingly passed the final decree in accordance with the terms of the report.
(3) Hans Raj defendant No. 3 was dissatisfied with ex parte order which was passed against him and presented an application under rule 13 of Order 9 of the Code of Civil Procedure for the setting aside of the ex parte decree on the ground that he was prevented by sufficient cause from appearing in Court on the 29th June 1950. The trial Court dismissed the application, but the learned Single Judge to whom an appeal was preferred came to a contrary conclusion.
He held that although an ex parte preliminary decree had been passed against Hans Raj and although he had not applied for the setting aside of that decree, it was not open to the trial Court to pass the final decree on a date which was not a date for the hearing of the suit, particularly when Hasn Raj had taken an active part in the enquiry before the commissioner. The learned Single Judge accordingly allowed the appeal, set aside the order of the trial Court and remanded the case to the trial Court with the direction that it should proceed from the stage at which the report of the local commissioner was filed. The plaintiffs have appealed, and the question for this Court is whether the learned Single Judge has come to a correct determination in point of law.
(4) Rule 6 of Order 9 of the Code of Civil Procedure provides that where 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. This rule empowers the Court to take ex parte proceedings against the defendant only if he fails to appear in Court when the suit is called on for hearing.
(5) Now, what is the meaning of the expression 'hearing' in its application to the particular facts and circumstances of this case? To 'hear' implies that there is someone before the Court to speak. In a broad general sense the expression 'hearing' is applied to the consideration of a case before a person clothed with judicial or quasi-judicial powers at the several stages of its progress, subsequent to its inception. A hearing is said to be 'final' if the case is 'interlocutory' if its purpose is to get the case into such shape that it may, in the end, be properly heard and finally adjudicated on the merits. In a more technical sense the expression 'hearing' means the introduction of evidence, the arguments of counsel and the pronouncement of a decree. I think the word 'hearing' in rule 6 of Order 9 of the Code of Civil Procedure has been used not in its broad or general sense but in its technical sense to mean a hearing at which the Judge either takes evidence or hears arguments or considers questions relating to the determination of the suit which would enable him finally to come up to an adjudication upon it: Balmakund Marwari v. Lachmi Narain Marwari, AIR 1920 Pat. 595, Mt. Barkat Bibi v. Fateh Ali, AIR 1949 Lah. 63). A day on which interlocutory matters concerning the future conduct of the case are taken up for consideration does not fall within the ambit of the expression 'the date of the hearing' (AIR 1949 Lah. 63). A day on which a commissioner submits his report to the Court and on which no other matter relating to the suit is taken up for consideration cannot possibly be regarded as the date of the hearing, (Manohar Dass v. Birandari Sheikhupurain, AIR 1936.Lah. 280). On that day it is not necessary for any one to speak, for no evidence is to be recorded, no arguments are to be heard and no other question regarding the determination of the suit is to be agitated. The Court is only to direct that the commissioner's report be placed on the file.
(6) I am of the opinion that the proceedings which took place on the 29th June 1950 cannot properly be called a 'hearing' and it was not within the power of the Court to proceed ex parte against the defendants. Ex parte proceedings under Order 9 rule 6 can be taken if, and only if, the defendant fails to appear in Court when the suit is called on for 'hearing'.
(7) For these reasons I would uphold the order of the learned Single Judge and dismiss the appeal with costs. Ordered accordingly.
(8) MEHAR SINGH J.: I agree.
(9) Appeal dismissed.