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S.N. Banerjee Vs. Huseyn Shahied Suhrawardy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal772
AppellantS.N. Banerjee
RespondentHuseyn Shahied Suhrawardy
Excerpt:
- .....upon the printer. it appears so have been established that the summons was not served upon the editor. the printer says that he handed over the summons to be attended to by the manager of the newspaper but that owing to the fact that the summons was not served on the editor or owing to some independent negligence, the manager took no steps, though he had promised to do so, to have the suit defended on the part of the printer. it is necessary that it should be understood what happened upon this default. under the rules of the original side, a person served with a summons is required to enter an appearance in the office of the court. that is an act which does not require his personal attendance and it does not involve his appearing before the court himself with or without his.....
Judgment:

Rankin, C.J.

1. This is an appeal from a judgment of Buckland, J. whereby he refused to restore a suit which was decreed ex parte. It appears that a newspaper of which defendant 1 was the editor and the present appellant defendant 2 was the printer published an article on 27th July 1926 referring to the plaintiff. The plaintiff says that the article is defamatory and, on 8th November 1926, ha brought a suit for damages against the editor and the printer. On 6th December, summons was served upon the printer. It appears so have been established that the summons was not served upon the editor. The printer says that he handed over the summons to be attended to by the manager of the newspaper but that owing to the fact that the summons was not served on the editor or owing to some independent negligence, the manager took no steps, though he had promised to do so, to have the suit defended on the part of the printer. It is necessary that it should be understood what happened upon this default. Under the rules of the original side, a person served with a summons is required to enter an appearance in the office of the Court. That is an act which does not require his personal attendance and it does not involve his appearing before the Court himself with or without his witnesses. If he does not enter appearance within the. time limited, the case will go into what is called the undefended list; and, when the case is on the undefended list, it is not possible for the defendant, without obtaining leave, to eater appearance. He has a limited right to cross-examine witnesses adduced on behalf of the plaintiff if he appears at the time when the undefended case is down for hearing; but Ads position is that of a man who for not entering appearance in time is precluded from defending the suit, whether he appears at the hearing or does not appear at the hearing. A similar form of procedure is applicable to a cause where a person has entered appearance but has made default in the filing of his written statement and again in the case of a person who has failed to obtain leave to defend in a suit on a negotiable instrument under Order 37, Civil P.C. In the present case, no appearance was entered. The suit came on the undefended list on 3rd January 1927 and the minute shows what took place before the Court on that occasion. Learned Counsel Mr. J.B. Sen, when the plaintiff had given his evidence in part appeared and represented to the Court that the writ had not been served on defendant 1, the editor, and he asked that the case might stand over to enable defendant 1 to enter appearance. I should have explained that this case came on the undefended list on the footing that both these defendants had been served and both had made default in entering appearance It was being heard, therefore, against both as an undefended suit. Mr. Sen stated in reply to the Court that he had not yet been instructed on behalf of defendant 1. Whether this means that Mr. Sen by that time was instructed on behalf of the present appellant is not quite clear.

2. The Court refused Mr. Sen's application for time holding that he had no locus standi. That, of course, was quite correct. A person who is not allowed to enter appearance cannot employ an attorney or counsel to appear on his behalf except possibly for a limited purpose specially provided for. Under these circumstances, a decree for Rs. 7500 for damages was passed against both the defendants. Then the editor applied to have the decree set aside as against him and he succeeded in his application - ostensibly on the ground that the writ of summons was not served on him. The printer applied on 18th January 1927 to have the decree set aside so far as he was concerned and the learned Judge has refused that application holding that, as he was served on 6th December, the negligence of the manager - his failure to provide for the defence of the suit - was not a 'sufficient cause' within the meaning of Order 9, Rule 13, Civil P.C. He has held further that this case is not one within the concluding proviso to that rule. On that, the printer brings this appeal.

3. It would appear from the judgment of Buckland, J. that the plaintiff said that he did not oppose the application of the editor to have the suit restored as against him because that he wanted him to have an opportunity of putting in a plea of justification. The position, therefore, is that the plaintiff, according to him, is anxious to fight out this question with the editor but desires that the judgment against the printer should stand in any event. I have some difficulty in seeing that this course is either reasonable or heroic and in my opinion, it is necessary for us to consider whether this Court is bound either to affirm that there is 'sufficient cause' within the meaning of Order 9, Rule 13, Civil P.C. or to refuse to set aside the decree.

4. In my judgment, Order 9, Rule 13, Civil P.C., is directed in terms to a different practice from that which obtains on the original side of the High Court and was followed in this case. It refers to the case which is the usual case in a mofussil Court where a summons has gone to a defendant informing him that on a given date the case will come on before the Court for hearing or for settlement of issues. The ordinary practice under Order 5. and the forms in the schedule to the Code sufficiently elucidate that. In the mofussil therefore the question arises in the form whether or not the defendant was prevented by 'sufficient cause' from appearing when the suit was called on for hearing. In the High Court, the question is whether or not the defendant has entered an appearance in the office. If he has not entered an appearance within a certain time, then his right to enter appearance comes to an end upon the suit being sent to the undefended -list in the absence of leave from a Judge. It does seem to me that there are many cases in the High Court where the mere fact that the plaintiff himself or the defendant himself was unable personally to attend on the day of the hearing would be no excuse at all because there are many cases in which the party is not a necessary witness and in which he was really intending to present his case by the assistance of attorney and counsel. I am unable to hold that the exact words of Rule 13, Order 9, are to be applied on the footing that they are directly applicable under the rules of the original side and. that they are exhaustive. It has been the general practice on the original side to follow the analogy of Rule 13, Order 9, on general principles of justice. As a rule the case will not be restored unless there be sufficient cause for the party not being ready to go on with the case when the case came before the Court. But on the original side at all events, the terms of Rule 13, do not prevent the Court where there is an element of negligence from restoring the suit upon proper terms. My own view is that the main purpose of Rule 13, Order 9, is to give a right to a party who could show sufficient cause to get a restoration on certain terms independently of having to make a plea to the mercy of the Court. The words are 'the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit'; I am not prepared to hold that the Court is deprived by this rule of its decretion in a. case like the present. If the matter is a question of discretion to be exercised on terms, I have a clear opinion that this would be a prop9r case in which to set aside the decree as against the printer.

5. It is quite clear that there is an absurdity if this judgment should go against the printer and the editor should be held not liable in respect of the same publication. Moreover, in the case of the printer of a newspaper, it does not seem to be reasonable that, in a question of this kind, he should go to the manager and request the manager to undertake the whole of the defence. It is true that when he does so, he is in some sense responsible as having entrusted the manager on his behalf to look after the case. But it may be a great hardship to a printer in a case of this kind who honestly relies upon the manager doing this duty as, indeed, he has promised to do, to find a judgment of Rs. 7,500 again9t him on the ground that this does not amount to 'sufficient cause' and that the Court is powerless to rescind the decree. Nothing that I have said is to be regarded in any way as pronouncing an opinion to the effect that in cases coming from the mofussil from Courts to which Rule 13, Order 9, Civil P.C., in its terms applies the 13th rule is not to be regarded as - exhaustive. Nor do I propose to define 'sufficient cause'. These questions may be left open for the purposes of the present case. Nor am I saying that what the learned Judge has said about Section 151, Civil P.C., is not well founded. It may be that, as a rule, Section 151 is wrongly invoked in cases which are covered by special legislation. I confine myself to the application of the principle of this rule to the very different practice that prevails on the original side of this High Court. I am not satisfied that the traditional view that the Court has a discration independently of Order 9, Rule 13, is wrong, and, in my judgment, this is a case in which the appeal should be allowed. At the same time the reason of default is a reason which must be attributed to the appellant and, in my judgment, he ought to pay the costs both before Buckland, J., and before this Court.

Mitter, J.

6. I agree.


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