S.N. Deedwania, J.
1. This revision petition is directed against the order dated 14-8-78 of the learned Civil Judge, Churu by petitioner plaintiff whereby the appeal of the non-petitioners defedents was accepted and exparte decree against them was set aside on payment of costs Rs. 50 within 15 days.
2. The facts relevant for the disposal of this revision are these. The petitioner filed a suit for recovery of Rs. 2200/- in the court of Munsif, Churu who passed an exparte decree against the defendant by his judgment dated 23-5-75. On 25-5-1974 defendants moved an application under Order 9 Rule 13 CPC, for setting aside the decree. On 28-12-74 the trial court accepted the petition and ordered that exparte decree be set aside on the condition that the defendants deposited the decretal amount in the court and paid Rs. 50/- as costs to the plaintiff within thirty days. The decree shall be considered to be set aside only on the fulfilment of the above conditions. It further appears that the defendants preferred an appeal against the order dated 28-12-74 but the same was dismissed summarily presumably on the ground that the impugned order was not a final order. It may be stated that (he defendants thereafter filed a review application which was dismissed. They preferred an appeal which was dismissed on the ground that no appeal against the order dismissing the review petition was competent. The defendants further approached the High Court by way of revision which was also dismissed in limini on 6-5-1976 However, before this on 5-5-1976 defendants moved an application before the trial court that a final order in his application for setting aside the exparte decree may be passed because they had not complied with the conditions of the order. The trial court did not issue any notice of this application to the plaintiff and on 14-5-76 passed an order to the effect that the defendants had not deposited the decretal amount and the costs in compliance with the order dated 28-12-74 and, therefore, the application of the defendant dated 25-5 74 under Order 9 Rule 13 CPC. may be deemed to be dismissed. Against this order the defendants filed an appeal and the learned Civil Judge accepted the appeal and passed the impugned order as stated above.
3. I have heard the learned Counsel for the parties and gone through the record of the case carefully.
4. It was argued by the learned Counsel for the petitioner that the order of the learned appellate court was without jurisdiction or in any case suffered from material irregularity in the exercise of jurisdiction because the impugned order was not the final order as the final order was already passed on 28-12-74. It was further contended that in any case the learned appellate court could hot have set aside the exparte decree without arriving at a finding that, the defendants were prevented by any sufficient cause from appearing when the suit was called on 17-5-74, when the exparte evidence of the plaintiff was recorded. The defendants in such a case have to satisfy the court that they were prevented from attending the court because of any sufficient cause on the date when the exparte evidence was recorded and the decree was passed No doubt before, the exparte decree was passed, the orders for exparte, proceedings were made by the court on 27-4-74 However, if the defendants wanted to challenge this order by which exparte proceedings were directed against them, they should have moved an application under Order 9 Rule 7 CPC, as it was then in force in Rajasthan. On the other hand the defendants might have some good grounds for not attending the court on 27-4-74 but it was a wholly irrelevant consideration because the crucial day was 17-5-74. It is argued by the learned Counsel for the respondent that in fact the final order on the application of the defendants to set aside the decree was the impugned order and not the earlier order. It was further contended by them that when the appellate court accepted the appeal, it meant to say that there was sufficient cause for the non-appearance of the defendants on the date when the exparte decree was passed. I have carefully considered the rival contentions.
5. The first question to be determined is whether the order dated 28-12-74 is a final order. The order was that the exparte decree be set aside on the condition that the defendants deposited amount in court and paid Rs 50/- as Costs to the plaintiff within thirty days and the decree shall be considered as set aside only on the compliance of the said conditions. The argument of the learned Counsel for the petitioner is that as no further date was fixed for passing any consequential order therefore, it was a final order. He relied on Chhaganraj and Ors. v. Suganmal and Anr. ILR VIII, Rajasthan, 295 in which it was thus observed:
That court obviously thought that a further order was required dismissing the application and it was for this reason, that the matter was put up again, on the 25th March, 1952, and the court passed an order actually dismissing the application, on that day In these circumstances, we are of opinion that the; real order is the order of the 25th March, 1952, dismissing the application and therefore, an appeal lies from that order and there is no force in the preliminary objection.
6. I have considered this authority carefully which in my opinion rather goes against the learned Counsel for the petitioner. In this case it was mentioned in the conditional order that if the terms were not; carried out the application would be considered rejected. In the case before me no such pre-emptory order was made that in case the conditions, were not complied with, the application to set aside the exparte order would stand dismissed. In Devi Prasad v. Radhakishan ILR IX Rajasthan, 796 the case of Chhaganraj v. Suganmal was distinguished and it was held that in a case where the order was of the nature that in a case of failure of the petitioner to abide by these directions this application for setting aside the exparte decree would stand rejected order was treated as final. This authority however does not help to settle the controversy because its was not mentioned in the original order that in case of the failure to comply with the conditions the application to set aside the exparte decree would stand dismissed. The learned Counsel for the petitioner relied upon the case of Balrama Reddi v. Subbarama Reddi : AIR1953Mad360 . Suffice it to say, that this authority also does not apply to the facts of this case. It was only observed that for an appeal from a conditional order to set aside the exparte decree, time begins to run from the date of the order and not from the date when the court makes further order dismissing the application on the failure to perform the condition. On the other hand the learned Counsel for the non-petitioner brought to my notice the following authorities:
1. Jagranath Sahi v. Kamta Prasad 1914 Allahabad, 55: To this, however, the following direction was appended: 'But the order of restoration will be subject to the payment of Rs. 15 as damages by the applicant within three days to the plaintiff.
In our opinion, the order actually passed can only be dealt with as one having substantially the effect stated above. On the order as passed, the application to have the exparte decree set aside was not finally disposed of, and further formal order of some sort or kind remained necessary to be passed after the expiry of the time fixed by the Court.
2. Narayan Putapa Chandragagtgi v. Vaikunt Subaya Sonde AIR 1927 Bombay, 1:
Failure to comply with the condition imposed would not by itself, in the absence on a provision in the order to that effect, operate as a rejection of the application to set aside the decree. The Court has to ascertain whether the applicant has carried, out the terms imposed on him. On proper cause being shown, the court may, at any him prior to the rejection of the application withdraw the, condition it had previously imposed on the applicant or accept any partial performance of it as sufficient to set aside the decree & restore the suit to the file, the Court may extend the time for complying with order. Until the application is finally rejected no right of appeal would accrue to the applicant.
3. N. Kasuppan v. M. Shankaran Nair AIR 1973 Kerala 28:
In a case where an order for setting aside and exparte decree is passed on condition that certain amounts are deposited within a given period, without specifying the consequences that would follow in the event of failure to comply with the order and the petition is posted for deposit, the rejection of the petition comes into effect only after the second order is passed. An appeal as contemplated under Order 43 Rule 1(d) would lie only from such a final order and not from the first order with condition.
7. I am, therefore, of the view that the order dated 28.12.1974 was not a final order because it did not specifically mention that if the defendants failed to comply with the conditions imposed by the court, the application to set aside the exparte decree would stand dismissed. I therefore, held that the order dated 14.5:76 is the final order whereby the application of the defendant was dismissed. The learned Counsel for the petitioner tried to argue that the order dated 14.5.76 was not a final order because the learned Munsif stated in this order that the application would be deemed to have been dismissed. In my opinion this will be too narrow and technical construction sought to be put on the order dated 14.5.76 because in fact the application stood dismissed only by virtue of this order. I, therefore, hold that an appeal was maintainable only against this order and not against the earlier order.
8. It was then vehemently contended by the learned Counsel for the petitioner that the effective proceedings in the suit after the ex parte order was passed were taken on and the defendant did not even allege in his application what prevented him from attending the court on that date. I am not inclined to agree with this contention in view of the allegations made in the application. It is alleged in the petition that on 27-4-74 the defendants did not attend the court in person and his lawyer Shri Asgarkhan could not attend the court when the suit was taken up for hearing because he was busy in the court of the Collector, Churu. It is further alleged that the defendants came to know of the exparte decree only on 24-5-74 when after passing of the ex parte decree on 23-5*74 they were informed by their counsel. Obviously the defendants could not attend the court on 27-5-74 because their counsel did not inform them of the date. Whether this would be at sufficient cause or not is for the lower court to decide but it cannot be said that no ground whatsoever was taken by the defendants for their absence on the date the exparte proceedings were ordered against them till the exparte decree was passed. I am aware that the defendants had to allege and prove sufficient cause for their absence on the date when exparte decree is passed and not for any earlier absence when only an order to take exparte proceedings is made because the defendants then have to get the order vacated by moving an application under Order 9 rule 7 CPC.
9. It is then argued by the learned Counsel for the petitioner that in any case the learned Munsif had no jurisdiction to set aside the exparte decree after arriving at a finding that no sufficient cause was shown by the defendants for their absence. Of course the learned Munsif observed that to him no substance appears in the petition made by the defendants. However, he then proceeded to set aside the exparte decree by imposing certain conditions. I have to examine the import of this order. Essentially this order consists of two parts, one is that the exparte decree was to be set aside and the other is of course on the compliance of the conditions imposed by the court on the defendant. The Plaintiff was not aggrieved of this order and he did not file any appeal or revision because he was satisfied that so long as the conditions were complied with, let the exparte decree be set aside. Against the final order when the application to set aside the decree was dismissed, the appeal was taken by the defendants. This subsequent final order cannot be divesed with the earlier conditional order and has to be read as a whole. The fact remains that the learned Munsif thought it fit to set aside the exparte decree, of course on certain conditions. In the memo of appeal filed by the defendants, they have challenged the finding, of the learned Munsif by stating in para 5 of their memo of appeal that there was sufficient cause for their non-appearance, yet the learned Munsif only directed the setting aside of the, decree after imposing onerous terms. I understand that if the plaintiff was satisfied with the order setting aside the exparte decree on the condit ionsimposed by the learned Munsif, he need not have challenged that order by way of appeal or revision. However, he could oppose the appeal on the ground that the order setting aside the exparte decree could not be made because there was no sufficient reason for the absence of the defendants. It appears from the judgment of the appellate court that such a stand was not taken by the learned Counsel for the plaintiff before the appellate court. The learned Counsel for the appellants also therefore, did not argue this point before the appellate court. It appears that because of this lapse the controversy totally escaped the notice of the appellate court and, therefore, there is no finding on this aspect of the case by the appellate court. I am of the opinion that the appellate court was bound to consider this aspect of the case before directing the setting aside of the exparte decree. It cannot be said because this point was not argued by the learned Counsel for the appellant or the respondent before the appellate court and it, therefore was not required to be considered it and by implication it accepted the finding of the trial court that there was sufficient cause to set aside the exparte decree. The argument of the learned Counsel for the non-petitioner before me is fallacious that because the learned appellate court did set aside the exparte decree, therefore, it should be inferred that it was found that there was sufficient cause for the non-appearance of the defendants. Learned Counsel for the parties have equally shared the blame for this lapse in presenting the case? before the learned appellate court.
10. I am aware that this unhappy litigation should come to an end on some day. However this was prolonged because the defendants were purusing wrong remedies. This reflects adversely on legal assistance available in our country and the society has to shoulder this blame and the defendants cannot be accused of any dilatory tactics because exparte decree was passed on 23-5-74 and they moved an application to set aside the exparte decree without any delay on 25-5-74 In such circumstances I have no option but to remand the case because the learned appellate court committed material irregularity in the exercise of its discretion and accepted the appeal and directed that the exparte decree be set aside without examining the question whether there was cause for the non-appearance of the defendants.
11. I, therefore, accept the revision petition and set aside the judgment of the learned appellate court and direct that in the light of the observations made by this court the appeal be reheard and decided. No order as to costs are made in the circumstances of the case.