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Sohanlal Ruia and anr. Vs. Kedarnath Purushottamdas and Co. Private Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 1 of 1967
Judge
Reported inAIR1969Cal516
ActsCode of Civil Procedure (CPC) , 1908 - Section 96 - Order 9, Rule 13 - Order 17, Rules 2 and 3
AppellantSohanlal Ruia and anr.
RespondentKedarnath Purushottamdas and Co. Private Ltd. and ors.
DispositionAppeal allowed
Cases ReferredSupreme Court Sangram Singh v. Election Tribunal
Excerpt:
- b.c. mitra, j.1. this appeal is directed against an order dated june 7, 1966 whereby the appellants' application for recalling and/or setting aside a decree dated april 7, 1966, was dismissed.2. the suit in which the decree wag passed, was called on for hearing on march 25, 1966. the witness of the respondent no. 1 (plaintiff in the suit) murlidhar jhunnjhunwalla was examined and his cross-examination was concluded on march 31, 1966. on the same day ishwari prasad ruia the appellant no. 2 was examined as a witness on behalf of the defendant but his cross-examination was not concluded on that day. the suit was thereafter not called on for hearing until april 7, 1966. on that day the examination of the appellant no. 2 was concluded. the next witness on behalf of the appellants was one debi.....
Judgment:

B.C. Mitra, J.

1. This appeal is directed against an order dated June 7, 1966 whereby the appellants' application for recalling and/or setting aside a decree dated April 7, 1966, was dismissed.

2. The suit in which the decree wag passed, was called on for hearing on March 25, 1966. The witness of the respondent No. 1 (plaintiff in the suit) Murlidhar Jhunnjhunwalla was examined and his cross-examination was concluded on March 31, 1966. On the same day Ishwari Prasad Ruia the appellant No. 2 was examined as a witness on behalf of the defendant but his cross-examination was not concluded on that day. The suit was thereafter not called on for hearing until April 7, 1966. On that day the examination of the appellant No. 2 was concluded. The next witness on behalf of the appellants was one Debi Prosad Bajoria, but this witness was not present in Court when the cross-examination of the appellant No. 2 was concluded. According to the appellants Debi Prosad had informed them in the morning of the same day that it was absolutely necessary for him to go to his factory at No. 1 Ultadanga Main Road, but ho also promised to attend the Court at 11 a. m. The appellants relied on this assurance of Debi Prosad and expected him to be in Court as promised. It is alleged in the petition that as soon as the appellant No. 2 stepped into the witness box at about 12-40 p. m. on April 7, 1966, for further cross-examination, the appellant No. 1 rung up Debi Prosad to enquire why the latter did not attend the Court as promised. Appellant No. 1 was told by Debi Prosad on the telephone that there was great disturbance in Manicktola area, where firing was going on at random and that no conveyance was available at the tune in the locality, to enable Debi Prosad to come to Court. Thereupon it is further alleged that the appellant No. 1 informed Debi Prosad that a transport would be arranged to fetch him to Court and thereafter the appellant No. 1 took a taxi, and proceeded towards Ultadanga Main Road, and upon reaching Manicktola area the appellant No. 1 found that it was not possible at all to reach the factory of Debi Prosad, because of disturbances. It is further alleged that taxi driver refused to proceed further towards the factory.

3. In the meantime the learned counsel appearing for the appellants upon finding that neither the next witness Debi Prosad nor the appellant No. 1 who was also a material witness were in Court, applied for an adjournment of the suit, but this prayer was rejected by the Court. Thereafter the Court waited for sometime and the learned counsel for the appellants prayed for an adjournment of the suit a second time, which was again refused. Upon refusal of the prayer for adjournment learned counsel for the appellants and for the respondents Nos. 2 to 8 asked for leave to retire from the suit but such leave was not granted. Thereafter the Court disposed of the suit by passing a decree in favour of the respondent No. 1. This was followed by an application by the appellants for recalling and/or setting aside the decree as mentioned earlier. This application was dismissed by the judgment and order dated June 7, 1966, which is the subject matter of this appeal, I should only add that the application for setting aside the decree, out of which this appeal arises, was tried by the Court below on evidence and on the oral evidence tendered the Court below came to the conclusion that there was nothing to prevent Debi Prosad from corning to Court for giving evidence on April 7. 1966.

4. On behalf of the appellants Mr. Hirak Milter contended that the learned counsel appearing for the appellants in the Court below had no other alternative but to ask for leave to retire as both the material witnesses were not present in Court. It was argued that in that circumstance it was not possible for the learned counsel to proceed with the suit and he was quite justified in asking for leave to retire, and although such leave was not granted it must be held that the decree as against the appellants was passsed ex parte and that the appellants were prevented by a sufficient cause from appearing in the suit which was then proceeding. It was argued that there was ample evidence that the appellants proposed to call Debi Prosad as the next witness and that Debi Prosad had left for his factory at Manicktala, and that owing to some disturbances, he was unable to come to Court to give evidence. The prayer for adjournment followed by the prayer for leave to retire, it was submitted, were by no means frivolous prayers and there was good ground for the same. It was therefore submitted that in the circumstances the suit must be held to have been disposed of ex parte as against the appellants and the Court below ought to have made an order setting aside and/or recalling the decree under Order 9 Rule 13 of the Code of Civil Procedure.

5. In support of the contentions mentioned above learned counsel for the appellants relied upon a Bench decision of this Court Aktar Hossain v. Sm. Husseni Begam : AIR1933Cal73 . In that case the plaintiff in the suit wanted time because of communal disturbance, and he was given time till next day. Thereafter he filed a petition saying that his pleader had not come to Court An adjournment was granted for five days. On the day to which the suit was adjourned the plaintiff filed an application for examination for a witness on commission. The suit was taken up for hearing on the 5th February and the plaintiffs examination as a witness commenced but his examination was not concluded, and he then went to Mymensingh and came back with some witnesses on the 6th February, but he was late in attending the Court by an hour; the Judge waited for 40 minutes and then took some evidence and dismissed the suit on merits. This dismissal was followed by an application by the plaintiff for restoration. In disposing of this application Rankin C. J. held that Rule 2 of Order 17 was attracted to the case and not Rule 3 and that it should be held that the decree of dismissal was made ex parte and therefore the case came under Order 9 of the Civil Procedure Code. Dealing with the question if there was sufficient evidence it was held as follows:

'Now, in a sense there is not sufficient cause because the plaintiff ought to have done his work of collecting his witnesses earlier and he ought to have got before the learned Judge sooner than he did. But it is evident that the man was doing his best and acting very strenuously in collecting his witnesses and bringing them in Court on the morning of the 6th and I do not think that we are debarred by terms of Order 9, Rule 13 Civil P. C., from giving him his remedy when in a wrong-headed and muddle-headed way he was doing his best to have his witnesses before the Court. That being so, I am of opinion that we ought to allow the appeal, set aside the decree, dismissing the plaintiff's suit and direct that the plaintiff's suit be restored'.

6. The next case relied on by the learned counsel for the appellants was a Full Bench decision of this Court Jonardan Dobey v. Ramdhone Singh, (1896) ILR 23 Cal 738 (FB). In that case the petitioner brought a suit for establishing his title to certain land. On the first hearing day, one of the defendants appeared by his Am-mukhtar and asked for time to file his written statement which was granted and a date was fixed for hearing of the case. As none of the defendants appeared or) the day fixed the Court heard the case ex parte and the decree was made in favour of the petitioner. Shortly thereafter the defendant who had appeared and obtained leave to file his written statement applied under Section 108 of the Civil Procedure Code, (1882) for setting aside the ex parte decree on the ground that he was unable to appear on the day fixed for hearing as his son was ill. That application was granted and the plaintiff thereafter came up to this Court with a prayer for setting aside the order of the Court below on the ground that Section 108 of the Civil Procedure Code applied only to cases in which the defendants had never appeared and was inapplicable to a case where the defendants had once entered appearance. Owing to the conflict of decisions on this question the Division Bench made a reference to the Full Bench and I set out below a part of the order of reference:

'When a decree is passed ex parte against a defendant, a remedy by appeal is now always open to him by S. 540 of the Code of Civil Procedure as amended by Act VII of 1888. But such a remedy can be efficacious only in those cases and their number must be small, in which the ex parte decree is either wrong in law on the face of the proceeding or is based upon evidence so weak that even though unrebutted it is insufficient to sustain the decree. In the great majority of cases in which a defendant having a good defence has had an ex parte decree passed against him, the disadvantage he labours under is that he has not been able to substantiate his defence by evidence before the Court- Upon the record, as it stands, the ex parte decree may be wholly unassailable, but if the defendant has an opportunity (which he was prevented from having owing to some sufficient cause) of placing on the record evidence which he could have adduced to substantiate his defence, no such decree should have been passed. The remedy in such a case cannot be by way of appeal which must ordinarily proceed upon the record as it stands. The proper remedy must be the one provided by Section 108 of the Code of Civil Procedure. Now is there any reason for saying that such a remedy is appropriate only in cases in which there has been a failure to appear from the beginning, and that it is inappropriate or less appropriate in a case in which appearance was once entered, though it might be (as was the case here) not to make any defence or file any written statement, but merely to ask for time for filing a written statement and then there was failure to appear at the adjourned hearing which must have been the real first hearing in the case We fail to discover any real difference between the two cases, and we are clearly of opinion that to hold that Section 108 of the Code of Civil Procedure does not apply to a case of the last mentioned kind would be to deprive the defendant of the only proper remedy that he can have, and would lead to grave miscarriage of justice in many cases.'

7. The majority view of the Full Court was that Section 108 which corresponds to Rule 13 of Order 9 of the present Civil Procedure Code applied and the petitioner was entitled to have the decree set aside. In effect it was therefore held that even though only one of the defendants appeared and asked for leave to file written statement the decree as a whole must be treated to have been passed ex parte and was liable to be set aside under Section 108 of the Code of Civil Procedure. Reliance was also placed on another Full Bench decision of this Court Satish Chandra Mukherjee v. Ahara Prasad Mukherjee, (1907) ILR 34 Cal 403 (FB). In that case the appellant presented a petition to the District Judge, that on the date fixed for hearing of the appeal, the senior pleader engaged by him had gone to Murshidabad to give evidence in a case, and that the junior pleader engaged by him was too ill to attend the Court, and also that he had engaged a third pleader to apply for adjournment of the hearing of the appeal for one day. This application for adjournment was refused by the District Judge and the appeal was dismissed. This dismissal was followed by an application for readmission of the appeal under Section 558 of the Code of Civil Procedure (1882) on the ground that the appellant had been prevented by sufficient cause from attending when the appeal was called on for hearing. The District Judge dismissed the application on the ground that the appellant's pleader had appeared and asked for time and therefore the appellant could get no relief under Section 558 of the Civil Procedure Code. The appellant therefore appealed to this Court and as there was a conflict of decisions on the question of 'appearance' the matter was referred to a Full Bench by the Division Bench Maclean C. J. with whom the other learned members of the 'Full Bench agreed, held that where a counsel or pleader was instructed only to apply for an adjournment which was refused it was not an appearance within the meaning of Section 556 of the Civil Procedure Code. It was also held that where in such circumstances an appeal was dismissed, such dismissal was one for default under Section 556 of the Civil Procedure Code which entitled the appellant to apply for readmission of the appeal under Section 558. The next case relied upon by learned counsel for the appellants was a Bench decision of this Court reported in ILR 41 Cal 956= (AIR 1914 Cal 360). In that case on the day fixed for hearing of the case, both parties appeared and the case proceeded from day to day. The examination and cross-examination of the plaintiff's witnesses were concluded, and the defence pleader examined one of the defence witnesses whose cross-examination was not concluded on the third day, and the suit stood adjourned to the next day when neither the defendant nor the witness nor the pleader for the defence appeared. The Subordinate Judge treated the case for the defence as closed and proceeded to hear the argument of the pleader for the plaintiff. There was no argument for the defendant and the Subordinate Judge decreed the suit in favour of the plaintiff. The defendant applied under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the decree on the around that it was passed ex parte. The Subordinate Judge rejected the application, and thereupon an appeal was preferred to this Court. The question arose whether there was appearance by the defendant in the facts of that case namely the defendant appeared by their pleader who was duly instructed and who conducted the case up to the stage when he failed to attend the hearing. It was held that Order 9 by itself did not apply to a case in which the defendant had already appeared in answer to the summons and the procedure for such a case was prescribed by Order 17 which dealt with adjournments. It was held that in that case Rule 2 of Order 17 applied and not Rule 3. Rule 2 provides that if on any day to which the hearing of the suit is adjourned the parties failed to appear, the Court may dispose of the suit in the manner prescribed by Order 9 and R. 3 provides that where any party to whom time has been granted fails to produce his witnesses or to cause the attendance of his witnesses the Court may proceed to decide the suit forthwith Rule 2 deals with cases where the hearing was adjourned at the instance of the Court, and Rule 3 to cases where the hearing was adjourned at the instance of the party to whom time has been allowed to do some act. It was. however, held that in order to attract Rule 3 of Order 17 of the Civil Procedure Code two conditions must be satisfied namely (i) the adjournment must have been at the instance of the party and (ii) there must be materials on record for the Court to proceed to decide the suit, and that the presence of one condition without the other, did not justify the application of Rule 3. It was further held that the adjournment in that case was not at the instance of the party and as the suit was adjourned at the instance of the Court Rule 2 of Order 17 applied and further that if that Rule applied then Rule 13 of the Order 9 was attracted and an application for setting aside an ex parte decree was maintainable.

8. Reliance was next placed by the learned counsel for the appellants on a decision of the Rajasthan High Court reported in . In that case it was held that the mere physical presence of counsel engaged by a party in Court would not in all circumstances amount to an appearance of the party himself and that if the counsel whether for the defendant or the plaintiff was not duly instructed to proceed with the case his physical appearance would not amount to an appearance of the party. This case, to our mind, is not of any assistance to the appellants as that was not a case where adjournment was asked for by a counsel nor was leave to retire prayed for. The facts in that case being entirely different from the facts in the instant appeal, the views expressed by the learned Judge are of no assistance to the appellants. Reliance was next placed by the learned counsel for the appellants on a Bench decision of the Madras High Court reported in : AIR1928Mad831 . In that case after several previous adjournments, a suit was fixed for hearing on a particular date, and on that date the plaintiffs Vakil applied for an adjournment, but the Subordinate Judge dismissed the application. When this adjournment was refused the plaintiff's Vakil did not say that he had no instruction but he took no further part in the case. The plaintiff who was present in Court in person also asked for an adjournment and when that was refused, he refused to go on with the case and the Subordinate Judge thereupon dismissed the suit. This dismissal was followed by an application for restoration. It was held that if in a case the plaintiff's pleader was not duly instructed and able to answer the material questions he did not appear on behalf of his client and that when the pleader asked for an adjournment which was refused, and he did not take any part in the trial, he did not appear on behalf of his client as he could not help his client and he knew nothing about the case. It WHS further held that the conduct of the vakil in, not taking any part in the trial when the request for adjournment was refused, showed that he did not propose to appear in the case and disassociated himself from the case and in the circumstances it could not be said that the pleader was duly instructed and able to answer all material questions. It was further held that the mere attendance of a pleader who was unable to answer all material questions relating to the suit could not be appearance on behalf of his client Regarding the presence of the witnesses in Court it was held that the plaintiff had taken all necessary steps for their attendance, but the witnesses were absent from their place of residence and in the circumstances the Court should have granted the adjournment the plaintiff asked for. On the facts of that case it was held that Rule 2 of Order 17 of the Civil Procedure Code applied and there was sufficient cause for non-appearance of the plaintiff and the Court ought to have set aside this dismissal,

9. Relying upon the decisions mentioned above learned counsel for the appellants argued that his client's counsel in the Court below had applied for adjournment of the suit twice, as the two next witnesses in the case were not present in Court. The prayer for adjournment was refused, and thereafter counsel asked for leave to retire, which was also refused and therefore it was not possible for the counsel to take any further part in the case. It was next argued that the hearing of the suit in this case was adjourned by the Court, and it was not a case where adjournment was granted at the instance of a party, and therefore Rule 2 of Order 17 applied and not Rule 3 of Order 17 of the Civil Procedure Code. It was next submitted that it was amply clear on the authority of the various decisions mentioned above that where a suit was dealt with under Rule 2 of Order 17 of the Civil Procedure Code, Rule 13 of Order 9 was attracted and if there was sufficient cause which prevented the defendant from appearing further in the suit it must be deemed to have been disposed of ex parte against the defendant.

10. In our view this contention on behalf of the appellants must be upheld It is true that the appellants' counsel was present in Court after the conclusion of the cross-examination of the first witness of the appellants, and it is also true that the second witness was not present in Court at the time when he was expected to be present. But as I have said earlier in this situation learned counsel for the appellants twice applied for adjournment and thereafter asked for leave to retire and this clearly demonstrated counsel's inability to participate in the suit any further. In our view in the facts of this case it must be held that the suit was disposed of ex parte as against the defendant in the suit.

11. Turning now to the question if there was sufficient cause for the non-appearance of the defendant in the suit it must be noticed that the next witness on behalf of the appellants Debi Prosad had gone to his factory at Ultadanga Main Road on April 7, 1966, and had promised to be in Court for examination as a witness at 11 a.m. It is also clear to us that there was certain amount of commotion arising out of incident of a communal nature in the area and according to Debi Prosad, this commotion had prevented him from coming to Court in time. It is also clear to us that the appellant No. 1 who was also proposed to be called as a witness did all that he could to secure attendance in Court of this witness and had proceeded towards the factory of Debi Prosad in a taxi, but he could not proceed beyond a certain point. We must hold that these facts constitute a sufficient cause as contemplated by Rule 13 of Order 9 of the Civil Procedure Code. After the suit was called on an April 7, 1966, the cross-examination of the appellant No. 2 was resumed shortly after the mid-day and was concluded within half an hour. At that time the appellant No. 1 was waiting at the office of the Solicitor, the reason for his waiting at the Solicitor's office being that he wanted to avoid the excitement of the Court room as he suffered from high blood pressure. But immediately after the cross-examination of the appellant No. 2 was resumed, be rang up Debi Prosad Baioria at his factory at Ultadanga Main Road to find out why the latter had not attended the Court earlier in the day as promised, and upon such inquiry he was told by the witness that there was disturbance in Manicktala area and firing was going on, and it was not possible to come out of the factory. The witness further informed the appellant No. 1 that there was no conveyance available for transport from the factory to the High Court. The appellant No. i thereupon told the witness that he would arrange for a motor transport to fetch him to High Court and thereafter he hired a taxi and proceeded towards the factory of Debi Prosad. As I have noticed earlier, he could not proceed beyond a certain point owing to the commotion created by communal disturbance. He thereupon returned to the High Court and was informed that adjournment was asked for, and that prayer having been refused counsel appearing on behalf of the appellant had retired after asking for leave for that purpose. In these facts the question is could the appellant No. 1 have acted any differently The cross-examination of the appellant No. 2 was resumed, and the next witness had not come to Court as promised, and in our view the appellant No. 1 did what he should have done namely proceed to the factory of Debi Prosad Bajoria to fetch him to the High -Court as Debi Prosad complained of lack of transport to come to the High Court. In the facts as stated in the petition and also as they have come out in evidence, we have no reason to disbelieve the statement of the appellants as to the events that happened.

12. Mr. Tebriwalla learned counsel for the respondent No. 1 on the other hand contended that Rule 13 of Order 9 had no application at all, as the suit was not heard ex parte against the defendant and secondly that there was no sufficient cause which prevented the defendants from appearing and thirdly that it was not a case of non-appearance by the defendants, as their counsel appeared in Court, one of their witnesses was examined and cross-examined and thereafter a prayer for adjournment of the suit was made and was rejected. It was argued that once having appeared and tendered a witness whose examination was concluded, it was not open to the appellants to contend that the suit was disposed of ex parte on the ground that the other witnesses were not present in Court. It was further argued that the only remedy available to the appellants was an appeal from the decree passed against them. In support of this contention Mr. Tebriwalla strongly relied upon a Bench decision of this Court, : AIR1959Cal389 which was also relied upon by the Court below in disposing of the appellants' application. In that case a suit was called on for hearing and two witnesses were examined, and cross-examined and the examination-in-chief of the third witness was not concluded on the day the suit was called on, when the Court rose for the day. When the suit was called on on the following Monday none of the counsel on behalf of the plaintiff was present and the Court waited for sometime to allow the plaintiff to appear through counsel. But even after the lapse of some time no one appeared for the plaintiff. Thereupon learned counsel for the defendant cross-examined the third witness of the plaintiff, whose examination-in-chief was commenced on the first day of hearing and even after the cross-examination of this witness was concluded, there was no appearance of counsel for the plaintiff. The learned counsel for the defendant did not call any witness, and closed his case. At that stage one of the junior counsel for the plaintiff appeared and asked for leave to examine some witnesses on the question of damages claimed by the plaintiff, but this leave was refused, and after this refusal the learned counsel for the plaintiff did not make any further submission on behalf of his client. The Court thereafter passed a decree in favour of the plaintiff for the amount admitted in the written statement. The junior counsel for the plaintiff on being asked by the learned Judge if his client would claim any damages said that on the evidence as it stood it was not possible for him to do so. The Court came to the conclusion that the defendant had committed a breach of contract but awarded no damages to the plaintiff as there was no evidence. This decree was followed by an application on the very next day for setting aside the decree and this application was allowed. An appeal was preferred against the order setting aside the decree. Chakra-vartti C. J. held that it could not be said that there was non-appearance on behalf of the plaintiff, as the junior counsel for the plaintiff appeared when the suit was proceeding and he did not ask for adjournment or for leave to withdraw from the case, on adjournment being refused, but he wanted to proceed with the suit and call his witnesses. This prayer was made for participation in the proceeding and therefore it was held that learned counsel for the plaintiff did appear in the suit although he was not allowed to take part in the proceeding in the manner in which he wanted to do. It was further held that Rule 2 of Order 17 did not apply and there was no disposal of the suit in any of the manners prescribed by Order 9 of the Civil Procedure Code; and that as the plaintiff did appear on the day the suit was disposed of there was no ex parte dismissal and there could be no question for restoration of the suit dismissed in part for default. It was further held that the suit was not wholly dismissed but that did not prevent Order 9 Rule 9 from applying if the portion dismissed had been dismissed for default

13. Relying upon the decisions mentioned above learned counsel for the respondent No. 1 strenuously contended that the suit was not disposed of ex parte, as the defendant's counsel appeared and was present in Court when the suit was called on for further hearing. In our view, however, the decision in : AIR1959Cal389 (Supra) does not at all help the respondent No. 1 in this case. The facts in that case are entirely different from the facts with which we are concerned. In the first place the plaintiff who applied for setting aside the ex parte decree obtained a partial decree for part of the claim although his claim for damages was reiected. In the second place the plaintiff's witness was present in Court and was tendered for cross-examination by the defendant's counsel and all the other, witnesses on behalf of the plaintiff were also present in Court In the third place plaintiff's counsel did appear in Court, but did not ask for adjournment or for leave to retire, but on the other hand he asked for leave to examine some witnesses on the question of damages and this leave was refused. It is quite clear that the plaintiff's counsel was present in Court and wanted to participate in the suit and call other witnesses to prove the damages claimed by his client. All the witnesses on behalf of the plaintiff were also present and the witness in the box was tendered for cross-examination. There was a failure in that case, on the part of the counsel to appear in Court when the suit was called on for further hearing, although counsel appeared later after the suit had proceeded for some time. It was in these facts that it was held that that was not a case of non-appearance on the part of the plaintiff and it could not be held to have been disposed of ex parte as against the plaintiff. The facts in Tulsiram Bhagwandas v. Sitaram Srigopal. : AIR1959Cal389 , in our view are entirely different from the facts with which we are concerned in this appeal. Before leaving this matter I should note that the Division Bench was hearing the appeal against an order of G.K. Mitter, J. who had set aside the decree. The Division Bench, however, although it was of the view that the trial Court was in error in setting aside the decree as it was not an ex parte decree, and was not disposed of under Order 17 Rule 2 of the Civil Procedure Code, dismissed the appeal on the ground that the order of G. K. Mitter J. was not a judgment and for that reason was not appeal-able.

14. The next case relied upon by the learned counsel for the respondent No. 1 was a decision of the Supreme Court Sangram Singh v. Election Tribunal, Kotah, : [1955]2SCR1 . In that case an election petition was filed under Section 100 Representation of the People Act. The proceedings commenced at Kotah and after some hearing the tribunal made an order that the further sittings would be at Udaipur from the 17th March 1953. On the 17th March neither the appellant nor any of his three counsel appeared, and so the Tribunal proceeded ex parte after waiting for sometime. Some of the witnesses were examined and the matter was adjourned till the 20th March, and on that date one of the three counsel of the appellant appeared but was not allowed to take part in the proceedings as the tribunal was of the view that it was proceeding ex parte at that stage. On the following day the appellant applied before the Tribunal for setting aside the ex parte proceedings and for leave to cross-examine the witnesses whose evidence had already been recorded. This application was rejected by the Tribunal and this order of rejection was followed by a writ petition in the High Court of Rajasthan. The Writ petition was rejected by the High Court and thereafter the matter went up in appeal to the Supreme Court. The Supreme Court agreeing with the Tribunal and the High Court held that no good causes were shown for non-appearance of the counsel on the adjourned date, but it also held that the appellant had a right to appear through counsel on the 20th of March 1953 and take part in the proceedings from the stage at which they had been reached subject to such terms and conditions as the Tribunal might think fit to impose. In coming to this conclusion the Supreme Court considered Rule 6 of Order 9 of the Civil Procedure Code and upheld the views expressed by Wallace J. in the decision reported In AIR 1925 Mad 1274 to the effect that ex parte merely meant in the absence of the other side and in doing so it observed at p. 431 of the report:

'When the defendant has been served and has been afforded an opportunity of appearing, then, if he 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'.

The Supreme Court also came to the conclusion that Order 9 Rule 6 (1) (a) was confined to the first hearing of the suit and did not per se apply to subsequent hearings. It was also held in that case that if the first hearing was also the final hearing of the suit an ex parte decree could be passed and if it was passed, then Order 9 Rule 13 came to play and before the decree was set aside the Court was required to make an order setting it aside. In our opinion this decision is of no assistance to the respondent No. 1, firstly because this was not a case Where counsel appeared and asked for adjournment and then for leave to retire. On the other hand in this case counsel did appear and ask for leave to participate in the proceedings which was rejected. Furthermore to the extent that the Supreme Court held that if a final decree was passed ex parte Order 9 Rule 13 of the Civil Procedure Code was attracted, this decision is against the contentions advanced on behalf of the respondent No. 1. The next case relied upon by Mr. Tebriwalla was a decision of this Court reported in (1908) ILR 35 Cal 1023. In that case a suit came up for hearing and the defendant appeared and contested the suit through his counsel. The hearing continued for four days, and thereafter the plaintiff's case was closed. The defendant's counsel thereafter read the evidence of witnesses taken on commission, and examined two witnesses and tender-ed documentary evidence. The defendant Intended to call two other witnesses but on the adjourned date these two witnesses were not in Court and the defendant's counsel applied for an adjournment of the suit on the ground that the two witnesses were coming and it was suggested that some accident or similar cause might have prevented the appearance of the witnesses. The case was adjourned till the following day. The learned Judge In adjourning the further hearing observed that if the two witnesses were not produced on the following day, any further application for adjournment must be supported by proper materials. When the suit was called on on the next day learned counsel for the defendant applied for a further adjournment and as the learned Judge was not satisfied about the grounds for the adjournment, the prayer for adjournment was rejected. Thereafter judgment was delivered and learned counsel for the defendant asked for an opportunity to send a man to Bilaspur but this prayer was refused. But before judgment learned counsel for the defendant withdrew from the suit and thereupon judgment was delivered. This was followed by an application for setting aside the decree which it was claimed, was passed ex parte and this application was rejected. This decision again is of no assistance to Mr. Tebriwalla as the adjournment asked for on the first day was granted and the learned Judge directed that if further adjournment was asked for it must be on proper materials. A further adjournment was asked for but without any materials, and thereupon the learned Judge declined to adjourn the suit and proceeded to deliver judgment. The defendant deliberately failed to apply on proper materials for an adjournment as directed by the learned Judge and it was only then that the adjournment was refused and for that reason the application for setting aside the decree was rejected. We do not think that this decision in any way supports the contention. of the learned counsel for the respondent No. 1 in this appeal The next case relied upon by Mr. Tebriwalla was a Bench decision of this Court reported in : AIR1930Cal488 . In that case a suit for declaration of title was filed, and the date of hearing was fixed. On that date both parties asked for adjournment which was refused. The plaintiff thereafter tendered certain witnesses and one of the defendants called a witness. The other defendants in the suit asked for an adjournment on the ground that they wanted issue of process against some witnesses. One of the defendants however, did not take any part in the proceeding. The suit was decreed against some of the defendants ex parte and these defendants applied for restoration of the suit under Order 9 Rule 13 of the Civil Procedure Code. But in the petition no ground was made out for setting aside the ex parte decree. The trial Court was of the view that no ground as required by Order 9 Rule 13 was made out but thereafter proceeded to exercise the powers under S. 151 of the Civil Procedure Code. It was held that if no case was made out under Order 9 Rule 13 of the Civil Procedure Code, it was not open to invoke the powers conferred by Section 151 of the Civil Procedure Code. This decision, to our mind, is of no assistance to Mr. Tebriwalla firstly because the Court came to the conclusion that no grounds were made out under Order 9 Rule 13 of the Civil Procedure Code and secondly because this Court reversed the decision of the trial Court on the ground that inherent powers under Section 151 of the Civil Procedure Code were exercised to set aside the decree. The next case relied upon by the learned counsel for the respondent No. 1 was a decision of this Court reported in (1911) 14 Cal LJ 604 (sic). In that case the evidence of the defendant was taken on commission and, this evidence was considered by the Court at the hearing. The Court thereafter passed a decree and an application was made for setting aside the decree passed ex parte and this application was allowed. A Rule was obtained from this Court against the order setting aside the decree and this Court made the Rule absolute so far as the preliminary decree was concerned but discharged the Rule so far as the final or supplementary was concerned and directed that the parties be given a further opportunity to show the amount due on the account which had been ordered. This case also is of no assistance to the respondent No. 1 firstly because no adjournment was asked for on the ground that counsel was unable to proceed and no leave to retire was also asked for, and secondly the Court did in part set aside the decree and gave the parties an opportunity to show the amount due on account being taken. The next case referred to by Mr. Tebri-walla was a decision of this Court reported in AIR 19f)G Cat 1. In that case a suit was adjourned to a particular date and on that date counsel for the plaintiff stated that the plaintiff was not present to be cross-examined further. The Court passed an order dismissing the suit. This dismissal was followed by an application under Order 9 Rule 9 of the Civil Procedure Code and this application was rejected by the Court on the ground that no sufficient cause was made out by the plaintiff for his non-appearance and there was no default of appearance. This decision is of no assistance to the respondent No. 1 in this case firstly because counsel in that case did not ask for adjournment nor did he ask for leave to retire nor did he say that he had no instruction to proceed with the case. The facts in that case are entirely different and I do not think the decision in any way deals with the question with which we are concerned in this appeal.

15. The next case relied upon, by Mr. Tebriwalla was a decision of the Allahabad High Court reported in AIR 1918 All 333. All that was held in that case was that a second suit on the same cause of action was not maintainable. On the date fixed for hearing of the suit the defendant did not appear, but one of the plaintiffs, was present but he adduced no evidence and thereupon the Court dismissed the suit for want of prosecution. The plaintiffs applied to have the dismissal set aside, but this application was refused on the ground that their remedy was by a separate suit. Thereafter the plaintiffs brought a second suit and it was held that this suit was not maintainable. The facts in this case and the questions raised therein are entirely different from the facts in this appeal, and therefore this decision is of no assistance to the respondent No. 1. The next case relied upon was a Bench decision of the Madras High Court reported in AIR 1935 Mad 210. In that case on the date fixed for hearing of the suit, the pleader of one of the defendants filed an additional written statement, and on his application a fresh issue was framed; and after that was done the pleader applied for an adjournment on the ground that his client was not able to be present on account of illness. It was held that since the defendant appeared by his pleader and filed an additional written statement and applied to the Court for framing of an issue, such art' were done by him in the conduct of the suit and towards the further progress of the suit, and therefore the suit was not heard ex parte as against that defendant. The facts in this case in our view are entirely different from the facts in the appeal now before us. The pleader appeared and participated in the suit in a manner which indicated that the defendant intended to go on with the suit, and it was only thereafter that he applied for an adjournment on the ground of illness of his client. It was only after the adjournment was refused that the pleader stated that he had no instructions, which was quite contrary to what he did earlier, namely filing of an additional written statement and applying for the framing of a fresh issue on the basis of this additional written statement. Such acts on the part of the pleader made it clear that his submission that he had no instruction could not be sustained having regard to the acts already performed by him in the further progress of the suit. The facts in this case being entirely different, the decision is of no assistance to the respondent No. 1. The next case relied upon was also a decision of the Madras High Court reported in AIR 1925 Mad 1274. The facts in that case also are entirely different. A decree was passed as against a defendant who failed to appear on the ground of his illness but when the Court declared him to be ex parte, he made an application under Order 9 Rule 7 of the Civil Procedure Code for setting aside of the order declaring him to be ex parte. This application was rejected by the trial Court and thereafter a revision petition was filed in the High Court, which held that there was no ground for interference with the order of the trial Court. I do not think that this decision has any application to the facts with which we are concerned in this appeal. Reliance was also placed on two decisions of the Assam High Court reported in AIR 1961 Assam 99 and AIR 1964 Assam 144. In those two decisions the Full Bench decision of this Court to which I have referred earlier were neither cited nor considered by the Learned Judges, and with due respect to the learned Judges we are unable to accept the views expressed by them. The last case relied upon by Mr. Tebriwalla was a decision of this Court reported in (1898) 2 Cal WN 676. In that case the defendants appeared and filed written statement, but their defence was struck out under Section 136 of the Civil Procedure Code (1882) for failure to file their affidavit of documents and the suit thereafter was placed in the undefended list of cases and a decree was passed. The defendant applied to set aside that decree under Section 108 of the Civil Procedure Code (1882); and it was in these facts that It was held that the decree was not an ex parte decree within the meaning of Section 108 of the Civil Procedure Code. The facts in this case are entirely different from the facts with which we are concerned in this appeal and the decision is in no way attracted to this appeal.

16. Mr. Tebriwalla made some comments on the evidence on the question of the failure of Debi Prosad Bajoria to be present in Court on April 7, 1966, at the conclusion of the cross-examination of the appellant No. 2. We are satisfied on the materials before us that there was in fact a civil commotion on that date and that the witness Debi Prosad Bajoria was held up in his factory at No. 1 Ultadanga Main Road. We are also satisfied that the appellant No. 1 hired a taxi-cab and proceeded towards the factory of the witness in order to fetch him to the Court, but he failed to proceed beyond a certain point, and was unable to reach the factory of the witness. That in our view explains the failure of the witness to be in Court and also of the appellant No. 1 at the material time, and provides sufficient cause which prevented them from being present in Court at the material time.

17. In our view in the facts of this case the suit must be treated to have been, disposed of by the Court below under Rule 2 of Order 17 of the Code of Civil Procedure, and that being so an application for setting aside the ex parte decree was maintainable under Rule 13 of Order 9 of the Code of Civil Procedure. The question, however, would be if there was sufficient cause as prescribed by Rule 13 of Order 9, which prevented the defendant from appearing when the suit was being heard. Mere physical presence of counsel in Court, without anything more, does not constitute an 'appearance' by a party in a suit particularly when he asked for leave to retire from the suit, on a ground which subsequently appears to be not frivolous or without substance. If in such a case leave to retire is refused and the Court proceeds to dispose of the suit, as was done in this case, it cannot but be held that the suit was disposed of ex parte as against the party who failed to appear. To hold that in such a case Rule 13 of Order 9 of the Civil Procedure Code does not apply because there was a right of appeal, would in our view cause grave injustice to a party. If in such circumstances a suit is decreed ex parte against a defendant as he failed to appear, and tender the evidence which he proposed to tender, an appeal against the decree would be hardly of any avail to him. He will certainly not be in a position to agitate the grounds of his defence before the appellate Court, because such defence would not be on the records. He would be confined and restricted only to an attack on the evidence tendered on behalf of the plaintiff and to question of law, if any, and to nothing more. If the suit was disposed of ex parte as against him and if there was sufficient cause for his failure to appear at the first or the further hearing of the suit, he cannot and should not be deprived of the right to advance and to agitate the grounds of his defence to the plaintiff's claim.

18. In our view the suit was disposed of ex parte against the appellants and the respondents Nos. 2 to 8 and the appellants had made out a case which showed sufficient cause which prevented them from appearing at the further hearing of the suit, and the decree passed against them ought to be set aside.

19. In the result, this appeal is allowed. The judgment and order of the Court below are set aside and there will be an order setting aside the decree dated April 7, 1960. Let the suit appear in the appropriate warning list forthwith. Parties will be at liberty to apply for early hearing of the suit. The respondent No. 1 to pay to the appellants the costs of this appeal and also the costs of the application out of which this appeal arises. The costs of the suit thrown away to abide by the result of the suit.

Sinha, C.J.

20. I agree.


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