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S.M. Raja Goundar and ors. Vs. Choolai Sabapathi Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 792 of 1949
Judge
Reported inAIR1952Mad798; (1952)IMLJ763
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rule 1; Madras Civil Courts Act, 1873 - Sections 24
AppellantS.M. Raja Goundar and ors.
RespondentChoolai Sabapathi Mudaliar
Appellant AdvocateN.R. Raghavachariar and ;V.C. Sri Kumar, Advs.
Respondent AdvocateM. Natesan, Adv.
DispositionRevision dismissed
Cases ReferredHukam Chand v. Mani Shibrat Dass
Excerpt:
- - expressed the opinion that when a judge is absent the clerk has no power to fix the adjournment date and failure to appear on a date so fixed does not justify the dismissal for default. himself on 18-2-1948 and objected to it or he could have stated that that date would not be suitable to him or matters like that. the petitioner has to prove that he was not aware of the adjourned date and he has signally failed to do so. but the failure to do so is a mere irregularity which would not amount to a failure of justice......date and failure to appear on a date so fixed does not justify the dismissal for default. the learned judge relied upon an earlier decision of the same court reported in -- 'jowala sahi dhera shah v. maya das', 33 p.l.r. 804. the learned judge was further of opinion that the absence of the party, on such an unauthorised adjourned date would not amount to any negligence on his part. the second of the lahore cases is by agha haidar j. in -- 'gulam haidar v. diwan iqbal nath', air 1936 lah 1000, where the learned judge relying upon the earlier decisions in -- 'jowala sahai dhera v. maya das', 33 p.l.r. 804 and in --'lalta prasad v. nand kishore', 22 all 66 , held that where the adjourned dates have been fixed by the reader of the court who has altered the dates signed by the.....
Judgment:
ORDER

Govinda Menon, J.

1. O. S. No. 100 of 1947 on the file of the Court of the District Munsif of Vellore,stood posted for hearing to the 18th February 1948 and on that day the presiding officer was on casual leave. The case was, therefore, adjourned to 4-3-1948 on which date the defendant did not appear. An 'ex parte' decree was passed against him as prayed for by the plaintiff. I. A. No. 356 of 1948 was filed by the defendant to set aside the 'ex parte' decree on the ground that he was not aware of the date to which the case had been adjourned, that he had been under the impression that the adjourned date was the 5th March 1948 and on the 'bona fide' belief that the case would be heard only on 5-3-1948 he did not attend court on 4-3-1948 or engage his counsel to conduct the same.

2. Both the lower courts have disbelieved the plea of the defendant chiefly on the ground that the defendant did not offer himself for examination to prove the allegations contained in his affidavit. The learned District Judge says that the vakil for the defendant in the Court of first instance refused to put the defendant into the witness box although requested to do so by the opposite side; and, therefore, what was peculiarly within the knowledge of the defendant was withheld from the knowledge of the Court. For these and other reasons, the application under Order 9 Rule 13, C. P. C. which was rejected by the trial Court shared the same fate at the hands of the court of appeal.

3. In revision it is contended before me by the learned counsel for the petitioner that whatever might be the merits of the case, the lower courts acted without jurisdiction in not setting aside the 'ex parte' decree for the reason that the adjournment of the case from 18th February 1948 to the 4th March 1948 was illegal and 'ultra vires' the powers of the officer who ordered it. It is urged that, on the absence of a Judge or presiding officer on a particular day, the chief ministerial officer has no jurisdiction to adjourn the cases posted for that date, and such being the case the adjournment to 4-3-1948 was entirely outside the powers of the ministerial officer and Jf that is so, a case wrongly posted to a date by an unauthorised person need not be attended to by the parties to that litigation.

For this contention reliance was placed on two decisions of the Lahore High Court, each by a Single Judge. In the first of them -- 'Hukam Chand v. Mani Shibrat Dass', AIR 1934 Lah 984, Hilton J. expressed the opinion that when a Judge is absent the clerk has no power to fix the adjournment date and failure to appear on a date so fixed does not justify the dismissal for default. The learned Judge relied upon an earlier decision of the same Court reported in -- 'Jowala Sahi Dhera Shah v. Maya Das', 33 P.L.R. 804. The learned Judge was further of opinion that the absence of the party, on such an unauthorised adjourned date would not amount to any negligence on his part. The second of the Lahore cases is by Agha Haidar J. in -- 'Gulam Haidar v. Diwan Iqbal Nath', AIR 1936 Lah 1000, where the learned Judge relying upon the earlier decisions in -- 'Jowala Sahai Dhera v. Maya Das', 33 P.L.R. 804 and in --'Lalta Prasad v. Nand Kishore', 22 All 66 , held that where the adjourned dates have been fixed by the reader of the Court who has altered the dates signed by the Subordinate Judge, such practice is wholly irregular end should be put an end to. In this case it does not appear from the facts stated that the adjournment was on account of the absence ofthe presiding officer for illness or for other reasons. 'Ex concessis' it has to be admitted that when there is a presiding officer in a court and when he adjourns the case to a particular date the clerk or the reader has no right to alter the date at all; and therefore this latter case of Lahore has no bearing so far as the facts of our case are concerned. . (4) No doubt the observations of Hilton J. in -- 'Hukam Chand v. Mani Shibrat Dass', AIR 1934 Lah 984 are of some help to the contention urged by the learned counsel for the petitioner. What we have to see is whether the practice and procedure obtaining in this State would justify the adoption of the very wide observations made by the learned Judge in that case. Under Section 24. of the Madras Civil Courts Act, ministerial officers of a Court shall perform such duties as may from time to time be imposed upon them by the presiding officer of the court. When a presiding officer is absent on account of illness or other reason from court, it is to be presumed that for performing the routine duties which are not judicial on that day the presiding officer has the power to delegate it to the chief ministerial officer. No instructions have been issued by this court to the subordinate courts as to what should be done with regard to cases which stand posted to a particular date when the presiding officer is unavoidably absent on that day. In such state of circumstances it seems to me that the proper procedure which ought to be followed by the subordinate courts is that such cases should be deemed to automatically stand adjourned to the next working day and on such next working day when the presiding officer attends court he should either take up those cases on that day or adjourn them to suitable dates. But the practice now obtaining, as I understand is, that the chief ministerial officer adjourns such cases to certain future dates. It is this practice that has given room for the contention raised by the learned counsel for the petitioner. In my view there is nothing illegal or improper in the Chief ministerial officer adjourning a case which stands posted to a particular date on which the judge does not attend court to a later date, if he is authorised to do so by the presiding officer. Mere adjournment of a case which has not been part-heard cannot he said to be a judicial order; and, therefore, even if the adjournment from the 1.8th February to the 4th March was done by the chief ministerial officer, still it cannot be held that the actioh was 'ultra vires' and that the case cannot be deemed to have been adjourned to 4th March 1948.

Moreover, in this case there is nothing to show -- because the petitioner has not offered to give evidence -- that on the 18th February he was present in court. He should have been present in court or should have taken necessary steps for the conduct of the case on the 18th and since there is no evidence that he was present, it cannot be held that there is any duty cast upon the court to inform him of the adjourned date when he has not conformed to the imperative duty of being present in court. In -- 'Commissioner of Income-tax v. Perianna Pillai'. 58 M.L.J. 10 .Curgenven J. in delivering the judgment of the Full Bench observed as follows:

'It is not the practice, much less a rule of procedure, even in the Court of Justice that an adjournment date is so intimated to an absent party. No doubt if a party chooses to apply, in person or by representative, atthe Court or Office, he can learn what orders have been passed. But he cannot insist upon a telegram or a letter by post, any more than he con insist upon a letter by a special messenger.'

if therefore, the petitioner by his own negligence in being absent on 18-2-1948 did not know the adjourned date, he has to thank himself. He cannot turn round and say that the chief ministerial officer had no jurisdiction to adjourn the case to a free day on a subsequent occasion. He should have presented. himself on 18-2-1948 and objected to it or he could have stated that that date would not be suitable to him or matters like that. But in the absence of such protest it cannot be held that the action of the ministerial officer in fixing a date for the hearing is illegal or irregular. The petitioner has to prove that he was not aware of the adjourned date and he has signally failed to do so.

5. As I have already remarked, the proper procedure that should have been followed by the presiding officer was to have taken up the cases which had stood posted for 18-2-48 on the next day when he attended court and himself either heard them that day or adjourned them to a future date. But the failure to do so is a mere irregularity which would not amount to a failure of justice.

6. This Revision Petition is therefore dismissed but in the circumstances without costs.


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