1. This appeal arises out of a petition under Sections 13, 47 and 151 of the Civil Procedure Code in Suit No. 15 of 1939-40, Sub-Court, Kolar. That suit was decreed in circumstances which disregard the provisions of Section 13(b), Civil Procedure Code, in that the decree was not given on the merits of the case.
2. It is unnecessary to go into the background of the disputes between the parties. It is enough to say that the appellant and the respondent were interested one way or another, in certain cinema machinery and accessories. After disputes had arisen as to the ownership of these goods, it appears that the respondent took them into the State of Mysore, where, according to him, the goods passed into the possession or ownership of another person, one Kanduri Lakshmayya. The appellant there filed a suit against the respondent and K. Lakshmayya. There can be no doubt that the respondent submitted to the jurisdiction of the Kolar Court. His written statement and other documents said in effect that he was no longer in possession of the goods and that they were in the possession of the second defendant. The second defendant in his turn said that some, at any rate, of the goods remained in the possession of the first defendant.
3. On the day fixed for the hearing of the case, the respondent (first defendant), was not present and I am told that his advocate reported 'no instructions.' The Subordinate Judge without hearing any evidence passed an order, Ex. P-4. This order purports to show that there was appearance by counsel on behalf of the plaintiff and of the second defendant only. It states that the plaintiff's advocate represented that the plaintiff had given up his claim to certain items. Then it goes on to say,
Thereafter both sides say that there may be a decree against only the first defendant as prayed for in the plaint for all the articles described in the inventory prepared by the commissioner except those given up by plaintiff to-day.... The suit is decreed as prayed for only against first defendant for all the articles described in the Commissioner's inventory except those given up by plaintiff to day.
The first defendant was then made liable for costs which amounted to Rs. 476-6-0.
4. In due course the plaintiff attempted to execute this decree within the jurisdiction of this Court. The first defendant objected and successfully in both the lower Courts that the decree was not given on the merits of the case. Hence this appeal by the plaintiff-decree-holder.
5. I am in agreement with the judgment of the lower Courts. It is well settled that a decree passed in this way without any evidence being given cannot be valid. In Venkatachalam Chetti v. Pichai Ammal (1920) M.W.N. 412 a decree given in circumstances almost identical with the present one was held to be valid because evidence had been given by the plaintiff. In Sundarm Filial v. Kandasami Pillai : AIR1941Mad387 a similar case to this, the necessity for the giving of evidence was emphasized by King, J., at page 143. There the question was whether the defendant had submitted to the Court's jurisdiction and it was held, that he had done so by filing a written statement. It was pointed out,
That the decree which was nevertheless given in his absence was not given until the plaintiff had actually been examined in the witness box. No doubt his examination was formal and brief and was not subjected to cross-examination but it cannot I think be successfully argued that the decree was based upon the fact of the failure of the defendant to appear, and must be deemed to have been based upon the evidence given by the plaintiff.
In the present case, had the plaintiff given sufficient cvidence to cover the content of his plaint, no objection whatever could have been raised to the decree.
6. The plaintiff may have fallen into a trap, in assenting to the second defendant's suggestion that the absent first defendant should take the entire blame. Nevertheless as was pointed out in Keymer v. Viswanatham Reddi (1916) 32 M.L.J. 35 :L.R. 44 IndAp 6 : I.L.R. 40 Mad. 112 a Privy Council case, Sub-section (b) to Section 13 refers to cases where for one reason or other, the controversy raised in the action has not in fact been the subject of direct adjudication by the Court.
7. It was impossible in this case for the foreign Court to adjudicate on the real issue between these parties namely who was in possession and therefore liable to surrender these goods, without hearing any evidence from the plaintiff.
8. In these circumstances, the case was not tried on the merits and this appeal must fail and is dismissed with costs.