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Ramji Dass Vs. Bhupinder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 298 of 1959
Judge
Reported inAIR1962P& H443
ActsDisplaced Persons (Debts Adjustment) Act, 1950 - Sections 11; Code of Civil Procedure (CPC), 1898 - Order 9, Rules 6, 6(1), 7 and 13 - Order 17, Rules 1(1) and 2
AppellantRamji Dass
RespondentBhupinder Singh and ors.
Cases ReferredHariram Rewachand v. Pribhdas Mulchand
Excerpt:
.....das was absent in spite of service was clearly contrary to the record and the order directing ex parte proceedings was in consequence wholly unjustified. the tribunal appears to me to have laboured under the misapprehension that if on 14-2-1953 service had been considered to have been duly effected then the tribunal was competent, to, and did, make an ex parte order which was to hold good during the entire future course of the proceedings till the passing of the ex parte decree. inference of mistake can only be possible on the view that on 14-2-1953 the tribunal had ordered-and also that it was legally competent to do so-to proceed in the absence of the present appellant till the termination of the proceedings unless he showed good cause for his non-appearance. (11) for the reasons..........that the other respondent (mahant ramji das) was absent in spite of service and that, therefore ex parte proceedings be taken. for proof the case was adjourned to 23-6-1953. on the last mentioned date the petitioner jewan singh asked for time because his evidence was not ready. the tribunal adjourned the case to 11-7-1953 for proof and rebuttal. after some more adjournments as ex parte decree was ultimately passed on 13-5-1954. these facts stated before us by shri j. n. seth, the learned counsel for the appellant, have not been controverted on behalf of the respondents.(3) on 15-6-1955 an application was filed on behalf of appellant mahant ramji das under order 9, rule 13, code of civil procedure, for setting aside the ex parte decree but the same was dismissed on 16-7-1953. in the.....
Judgment:

Inderdev Dua, J.

(1) This Letters Patent Appeal is directed against the judgment of a learned Single Judge of this Court by means of which he dismissed First Appeal from Order No. 110 of 1957 and affirmed the order of the Tribunal under the Displaced Persons (Debts Adjustment) Act LXX of 1950 declining to set aside the ex parte order passed against the present appellant.

(2) In order to appreciate and understand the real point in controversy it is desirable to state some of the facts as also the dates relating to the proceedings before the Tribunal. Jiwan Singh, father of respondents Bhupinder Singh, Joginder Singh and Chatra Dev Singh applied to the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act (hereinafter called the Act) as Hissar under Section 11 of the Act. He claimed Rs. 16,000/- from Mahant Ramji Das, the present appellant, on the allegation that he had given his land in Kasur (now in Pakistan) on lease to Raghbir Singh for 10 years of Rs. 7,000/- per annum in January, 1944. The lessee had paid Rs. 20,000/- to Mahant Ramji Das in advance and out of this advance payment Rs. 2,000/- were to be adjusted every year towards the lease money, the balance of the annual lease money to be paid in case. For two years the instalments of Rs. 2,000/- per year were duly adjusted. For the balance of Rs. 16,000/- these proceedings were initiated on 9-12-1952. It appears that a day earlier i.e. on 8-12-1952 Raghbir Singh had initiated similar proceedings against Mahant Ramji Das in the Tribunal under the Act at Ferozepur. These proceedings were successfully contested by Ramji Das with the result that on 25-2-1954 proceedings initiated by Raghbir Singh were dismissed.

It is common ground that Jiwan Singh claimed to be a transferee of this amount from Raghbir Singh and it was in that capacity that the proceedings in the Hissar Tribunal were initiated by him. Notice in Jiwan Singh's application was issued on 2-2-1953 to the appellant for 14-2-1953. On 3-2-1953 the Tribunal ordered that Mahant Ramji Das had refused to take registered over and this was considered to be sufficient service. On the same date fresh notices were ordered to be issued to Arjun Shah a pro forma respondent in those proceedings for 25-3-1953. On 25-3-1953 the Presiding Officer of the Tribunal was on leave and the Reader adjourned the case to 31-3-1953. On 31-3-1953 fresh notices were directed to be sent to the respondents for 7-5-1953. On 7-5-1953 it was found that notices had by oversight not been issued as directed, with the result that it was again ordered that notices should go for 13-6-1953. On 8-5-1953, however, only one registered notice was issued to the pro forma party respondent. On 11-6-1953 the pro forma respondent sent his reply to the Tribunal by post.

On 13-6-1953 the Tribunal observed that the pro forma respondent had sent his reply and that the other respondent (Mahant Ramji Das) was absent in spite of service and that, therefore ex parte proceedings be taken. For proof the case was adjourned to 23-6-1953. On the last mentioned date the petitioner Jewan Singh asked for time because his evidence was not ready. The Tribunal adjourned the case to 11-7-1953 for proof and rebuttal. After some more adjournments as ex parte decree was ultimately passed on 13-5-1954. These facts stated before us by Shri J. N. Seth, the learned counsel for the appellant, have not been controverted on behalf of the respondents.

(3) On 15-6-1955 an application was filed on behalf of appellant Mahant Ramji Das under Order 9, Rule 13, Code of Civil Procedure, for setting aside the ex parte decree but the same was dismissed on 16-7-1953. In the application it was expressly stated that no notice had been received by the petitioner after 31-3-1953 when the Tribunal ordered fresh notices to be issued to the respondents and knowledge of the ex parte decree was stated to have been acquired by him on 19-5-1955 when some claim due to him from a third party was got attached by Jiwan Singh.

(4) The Tribunal in its order dated 16-7-1957 observed that service having been considered by the Tribunal to be sufficient by its order dated 14-2-1953, it was not at all necessary to order fresh notices to go on 31-3-1953. On this view, the Tribunal came to the conclusion that no fraud having been alleged or proved with respect to the report of the postman the order dated 14-2-1953 was final and, therefore, Mahant Ramji Das was not entitled to have the ex parte order set aside.

(5) On appeal having been preferred in this Court, the learned Single Judge observed that the order dated 14-2-1953 did not stand obliterated merely because fresh notices had to be issued to the respondents as ordered by the Tribunal on 31-3-1953. The learned Single Judge thought that the use of the word 'respondents' in plural was a mistake and the appellant could not take advantage of this order. Having refused service earlier, the service on Mahant Ramji Das should be considered in the order of the Court could affect the validity or finality of the order dated 14-2-1953. The omission of the Tribunal to state that the proceedings would be taken ex parte in its order dated 14-2-1953 could not, in the view of the learned Single Judge, lead to the conclusion that the Court had left its mind open on that matter. With these observations, the learned Single Judge dismissed the appellant's appeal, and it is in these circumstances that the present Letters Patent Appeal has been preferred.

(6) On behalf of the appellant, it has been contended that the Tribunal having omitted or failed to order on 14-2-1953 that the proceedings against Mahant Ramji would continue to be ex parte and that the Tribunal having expressly ordered on 31-3-53 that fresh notices should issue to the respondents the Tribunal as well as the learned Singh Judge were wrong in holding that there was due service of the appellant and that the ex parte order did not deserve to be set aside. On behalf of the respondents, however, the orders of the Tribunal and of the learned Single Judge have also been sought to be supported on the further ground that the date of knowledge as given by Mahant Ramji Das in his application for setting aside the ex parte order is different from that given in his statement as a witness with the result this his story should not be believed and the application filed by him on 15-6-1955 should be considered to have been barred by time. It may be mentioned in this connection that according to Mahant Ramji Das, it was on 19-5-1955 that he came to know of the ex parte order.

(7) After devoting my most earnest thought to the case it appears to me that the Tribunal failed to grasp and appreciate the real point which arose for its consideration in the present controversy. Under Order 9, Rule 6 C.P.C. when 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 is empowered to proceeded ex parte. The Court, however, must hold due service of the summons proved and it is only then that it can proceed ex parte. The rule does not contemplate an order that the future proceedings against the party proved to have been duly served and absent would be ex parte, for, the Court is only concerned with the particular hearing at which a party was afforded the chance to appear and did not avail himself of it.

The Supreme Court had an occasion to consider the scope and effect of Order 9, Rule 6(1)(a) of the Code of Civil Procedure in Sangram Singh v. Election Tribunal, Kotah, (S) AIR 1955 SC 425; and after noticing conflict in the judicial opinion authoritatively stated the position thus:

'Therefore, we reach the position that O. 9 R. 6(1)(a), which is the rule relied on, is confined to the first hearing of the suit and does not per se apply to subsequent hearings. See Zeinulabdin Khan v. Ahmed Raza Khan, 5 Ind App 233 at p. 236(PC).

Now to analyse R. 6 and examine its bearing on the first hearing. When the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served-

'(a).................................. the Court may proceed ex parte. The whole question is, what do these words mean? Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimham, AIR 1925 Mad 1274, that ex parte merely means in the absence if the other party, and on the other side is the view of O'Sullivan J., in Hariram Rewachand v. Pribhdas Mulchand, AIR 1945 Sind 98 at p. 102, that it means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The remaining decisions, and there are many of them, take one or the other of those two views.

In our opinion, Wallace J., and the other Judges who adopt the same line of thought, are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no proceeding in Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, the, if the does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order.

Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that R. 6(1)(a) does is to remove a bar and no more. It merely authorise the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties. The contrast in language between R. 7 and R. 13 emphasises this.'

and a little lower down:

'We next turn to the 'adjourned' hearing. That is dealt with in O. 17. Rule 1(1) empowers the Court to adjourn the hearing and whenever it does so it must fix a day 'for the further hearing of the suit', except that once the hearing of the evidence has begun it must go on from day to day till and the witnesses in attendance have been examined unless the Court considers, for reasons to be recorded in writing, that a further adjournment is necessary. Then follows R. 2-

'Where on any day to which the hearing of the 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 O. 9 or make such other order as it thinks fit.' Now R. 2 only applies when one or both of the parties do not appear 'on the day fixed' for the adjourned hearing. In that event, the Court is thrown back to O. 9 with the additional power to make 'such order as it thinks fir'. When it goes back to O. 9 it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed ex parte is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to O. 9. R. 6.'

(8) On 25-3-1953 the Presiding Officer of the Tribunal was on leave and it was the Reader who adjourned the case to 31-3-1953. On that date when the defendants were not present it was clearly open to the Tribunal under Order 17 Rule 2 of the Code either to proceed to dispose of the suit in one of the modes directed by O. 9 or to make such other order as it thought fit. The Tribunal seems to me to have thought fit to direch fresh notices to the respondents which, in my opinion, was eminently a just course to adopt. I need not in this case consider the competence of the Reader to adjourn the case on 25-3-1953 to 31-3-1953 and the binding nature of that order, as this aspect was not convassed at the bar, but it is clear that the Court did pass an order on 31-3-1953 that fresh notices should go to the respondents before it. It is not disputed, and, indeed, it is the common case of the parties, that in spite of this order no fresh notice went to the present appellant who was the real contestant most vitally affected by the proceedings. In the order dated 13-6-1953, therefore, the observation the Mahant Ramji Das was absent in spite of service was clearly contrary to the record and the order directing ex parte proceedings was in consequence wholly unjustified. Adjournment of the case for ex parte evidence to 27-6-1953 as also subsequent adjournments for the same purpose were in the circumstances for the same purpose were in the circumstances equally unjustified and, in my view, tainted with the same legal infirmity. The Tribunal appears to me to have laboured under the misapprehension that if on 14-2-1953 service had been considered to have been duly effected then the Tribunal was competent, to, and did, make an ex parte order which was to hold good during the entire future course of the proceedings till the passing of the ex parte decree. That this view is incorrect in law is clear from the legal position enunciated by the Supreme Court in Sangram Singh's case (S) AIR 1955 SC 425.

(9) On appeal in this Court too, the attention of the learned Single Judge was unfortunately not drawn to the law enunciated in Sangram Singh's case, (S) AIR 1955 SC 425. The view that the use of the word 'respondents' in plural in the order of the Tribunal dated 31-3-1953 was a mistake appears to me to be unsupportable on the existing record, and, as a matter of fact, our attention has not been invited to any part of the record which would suggest that the Tribunal did not intend to issue notices to both the respondents as appears to have been presumed by the learned Single Judge. Inference of mistake can only be possible on the view that on 14-2-1953 the Tribunal had ordered-and also that it was legally competent to do so-to proceed in the absence of the present appellant till the termination of the proceedings unless he showed good cause for his non-appearance. That this view is not correct is obvious from Sangram Singh's case (S) AIR 1955 SC 425. As observed there Order 9, Rule 6

'is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it.'

On 31-3-1953, therefore, the previous order dated 14-2-1953 was not operative and it was fully competent for the Tribunal-perhaps it was its duty-to consider afresh the question whether or not to hold the proceedings on that day in the absence of Mahant Ramji Das. The error which crept in the impugned orders, in my view, would in all probability not have crept in, had, the attention of the Tribunal and the learned Single Judge been drawn to the legal position enunciated in Sangram Singh's case (S) AIR 1955 SC 425.

(10) The result of the foregoing discussion is that when the tribunal ordered on 31-3-1953 that notices should go to the respondents before it, an again on 7-5-1953 when after observing that notices had by oversight not been issued it directed notices to go, it was wrong on the part of the Tribunal to proceed ex parte against Mahant Ramji Das in his absence without effecting due service, and, finally to pass the impugned ex parte decree. The Tribunal had no power to proceed the way it did and the appellant before us has a just grievance and is entitled to have the ex parte proceedings and decree set aside.

(11) For the reasons given above this appeal is allowed and the order of the learned Single Judge as well as that of the Tribunal set aside, and, allowing the application of the appellant under Order 9, Rule 13 Civil Procedure Code, I set aside the ex parte decree dated 13-5-1954, and remit the case back to the Tribunal for proceeding with Jiwan Singh's application in accordance with law and in the light of the observations made above. The parties have been directed to appear in the Tribunal on 16-4-1962 when another date would be given for further proceedings. Costs so far incurred would be costs in the cause.

Tek Chand, J.

I agree.

Appeal allowed.


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