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Hans Raj Owner of the Firm Ram Saran Dass Ram Dass, Amritsar Vs. Sohan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 23 of 1952
Judge
Reported inAIR1954P& H207
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 7 - Order 18, Rule 2 - Order 20, Rule 1
AppellantHans Raj Owner of the Firm Ram Saran Dass Ram Dass, Amritsar
RespondentSohan Singh and ors.
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate K.L. Gosain and; S.D. Bahri, Advs.
DispositionAppeal allowed
Cases ReferredManohar Dass v. Birandari Sheikhu
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of..........for dissolution of partnership and rendition of accounts against nine other partners of that firm. shri hans raj was defendant no. 3 in that suit.3. on 29th april 1950, dewan chaman lal, subordinate judge 1st class, amritsar, passed preliminary decree in civil suit no. 430 of 1949 fixing the shares of the parties in the business of the firm and appointing shri nathu lal to be the local commissioner for the examination of accounts and report on the liability of each one of the partners. from the record it is plain that the preliminary decree was passed ex parte against shri hans raj defendant no. 3. in the preliminary decree it was found that defendants nos. 6 and 9 held 1/10th share in the partnership while the other partners had 1/10th share each in that partnership.4. in proceedings.....
Judgment:

Harnam Singh, J.

1. In order to appreciate the pointthat arises for decision in P. A. O. No. 23 of 1952 the facts may be set out in some detail.

2. On 3rd August 1949, Sohan Singh and Gopi Nath two of the eleven partners of the Commercial Syndicate instituted Civil Suit No. 480 of 1949 for dissolution of partnership and rendition of accounts against nine other partners of that firm. Shri Hans Raj was defendant No. 3 in that suit.

3. On 29th April 1950, Dewan Chaman Lal, Subordinate Judge 1st Class, Amritsar, passed preliminary decree in Civil Suit No. 430 of 1949 fixing the shares of the parties in the business of the firm and appointing Shri Nathu Lal to be the local commissioner for the examination of accounts and report on the liability of each one of the partners. From the record it is plain that the preliminary decree was passed ex parte against Shri Hans Raj defendant No. 3. In the preliminary decree it was found that defendants Nos. 6 and 9 held 1/10th share in the partnership while the other partners had 1/10th share each in that partnership.

4. In proceedings before the local commissioner Shri Hans Raj participated and produced books of account.

5. On 22nd June, 1950, Shri Nathu Lal appeared in Court and stated that the examination of the accounts was almost complete and that the case may be adjourned to 29th June, 1950, for the filing of the report. In those circumstances the Court adjourned the case to 29th June, 1950 for the filing of the report of the commissioner.

6. Shri Nathu Lal filed the report in Court on 29th June, 1950. On the last mentioned date counsel for the plaintiffs and the mukhtiar of defendant No. 1 made statements that they had no objection to the report of the commissioner, Ex. L. C. P-1. Defendants Nos. 2 to 9 did not appear in Court on 29th June, 1950. On that state of the record the Court passed the final decree to the following effect:

'Sohan Singh plaintiff No. 1 shall recover Rs. 2500/- from Hans Raj defendant No. 3, Gopi Nath plaintiff No, 2 will recover Rs. 2,000/- from Hans Raj defendant No. 3, Hira Lal defendant No. 4 shall recover Rs. 2500/- from defendant No. 3, Panna Lal defendant No. 2 shall recover Rs. 2,000/- from Hans Raj defendant No. 3 and Ayudhya Nath defendant No. 1 shall recover Rs. 2,000/- from Hans Raj defendant No. 3.The suit is dismissed against defendants Nos. 5 to 9 and they shall bear their own costs.'

7. On 17th July, 1950, Shri Hans Raj defendant No. 3 applied under Order 9, Rule 13, read with Section 151, Civil P. C., hereinafter referred to as the Code, that the decree passed on 29th June, 1950, may be set aside, for he was prevented by sufficient cause from appearing in Court on that date. Finding that there was no ground to set aside the ex parte decree passed against Shri Hans Raj the Court has rejected the application with costs.

8. From the order passed by the Court of first instance under Rule 13 of Order 9 of the Code, Shri Hans Raj defendant No. 3 appeals under Order 43, Rule 1(d) of the Code.

9. From a perusal of the record it is plainthat in passing the final decree the Courthas disregarded the provisions of Order 18, Rule 2, andOrder 20, Rule 1 of the Code.

10. Rule 1 of Order 20 of the Code provides: 'The Court, after the case has been 'heard', shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders.' Rule 2 of Order 18 of the Code reads:

'(1) On the day fixed for the hearing of the suit or oh any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if arty) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.'

(10a) In several cases it has been held that the expression 'hearing of the suit' means the hearing at which the Judge would be taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it.

11. In -- Manohar Dass v. Birandari Sheikhu-purain', AIR 1936 Lah 280 (A), it was said that the date on which the Court expected the report of the commissioner is not the date of the hearing.

12. In my judgment, the Court should have adjourned the case for objections, if any, to the report of the commissioner and not have passed the final decree on 29th June, 1950.

13. As stated hereinbefore, the preliminary decree was passed ex parte against Shri Hans Raj defendant No. 3. In proceedings before the commissioner Shri Hans Raj defendant No. 3 participated. In the report the local commissioner found defendant No. 3 to be liable to pay Rs. 11,000/- to the plaintiffs and defendants Nos. 1 2 and 4. If so, Shri Hans Raj defendant No. 3 was vitally interested In the report of the local commissioner.

14. Dealing with the matter the Court of first instance has said:

'As pointed out above, the proceedings against him (Hans Raj) when the preliminary decree was passed were also ex parte. This defendant had not made any application to get the decree set aside. He had as a matter of fact absented throughout the trial in Court but as was clear from the statement of the local commissioner the petitioner had been attending at the local commissioner's place with his account books throughout the inquiry at its final stages.'

15. That defendant No. 3 did not apply for the setting aside of the preliminary decree did not justify the passing of the final decree on a date which was not a date for hearing of the suit, particularly when Shri Hans Raj defendant No. 3 had been 'attending at the local commissioner's place with his account books throughout the inquiry at its final stages.'

16. Prom a perusal of Rule 7 of Order 9 of the Code it is plain that the principle underlying that rule is that so long as an ex parte decree is not passed the defendant is entitled to come In and defend the suit. That shows that defendant against whom the case is proceeding ex parte may join at any hearing of the case and start from that stage.

17. For the foregoing reasons, I allow the appeal, set aside the order passed by the Senior Subordinate Judge and remand the case to the trial Court with direction to proceed from the stage at which the report of the local commissioner was filed.

18. Parties are directed to appear in the Court of the Senior Subordinate Judge on the 1st of February, 1954.

19. Costs in these proceedings to abide the result of the event.


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