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Lehareaux Vs. Ashruffunnissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal272
AppellantLehareaux
RespondentAshruffunnissa and anr.
Excerpt:
non-appearance by defendant - application to defend refused--ex parte decree against defendants--right of defendants to appeal without taking steps to set aside the decree--civil procedure code (act x of 1877), sections 101 and 108. - .....us is, whether, under the circumstances, the defendants are entitled to appeal against the ex parte decree without having first resorted to the procedure laid down in section 108. it appears to us that they are entitled to appeal. section 101 is as follows: 'if the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit.' it appears to us that what the legislature here intended was, that the defendant might be admitted to defend the suit merely upon a petition, and without any evidence being gone into to prove the truth of the facts stated in that petition. the section.....
Judgment:

Field, J.

1. It appears to us that we cannot say that the District Judge was wrong in rejecting a petition of this kind, which was not supported by affidavit and which was not even verified by the defendants on whose behalf it was presented.

2. Now, the first question that has been raised before us is, whether, under the circumstances, the defendants are entitled to appeal against the ex parte decree without having first resorted to the procedure laid down in Section 108. It appears to us that they are entitled to appeal. Section 101 is as follows: 'If the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit.' It appears to us that what the Legislature here intended was, that the defendant might be admitted to defend the suit merely upon a petition, and without any evidence being gone into to prove the truth of the facts stated in that petition. The section contains no provision for, and does not appear to contemplate, taking such evidence, If, however, the Court does not admit the defendant to defend the suit upon such a petition, he then has a further remedy under Section 108. He can, under this section, claim to satisfy the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If he can satisfy the Court on any of these matters, the result will be, that the ex parte decree will be set aside, the case will be reheard, and the defendant will have an opportunity of producing his own evidence and cross-examining the witnesses produced on the part of the plaintiff, Now, in this case the defendant has not taken this course, and the question is raised can he, without taking this course, appeal against the ex parte decree? Section 119 of the old Code (Act VIII of 1859) provided as follows: 'No appeal shall lie from a judgment passed ex parte against a defendant who has not appeared, &c.;' There is no such express prohibition in the present Code: and we think that the reasonable conclusion to be drawn from the omission of this express prohibition, and from the amended definition of the term decree in Section 2 of the present Code is, that the Legislature intended to allow an appeal against an ex parte decree, and it appears to us that this is just and reasonable, because there may be many cases in which, although the defendant is unable to satisfy the Court that he was not served with summons or that he was, by some other sufficient cause, prevented from appearing, yet, upon the evidence given by the plaintiff, he may be able to satisfy the Appellate Court that the decree is one which cannot be supported. If a defendant, instead of resorting to the procedure provided by Section 108, appeals direct against an ex parte decree, he of course lies under this disadvantage that he has no evidence of his own to depend upon. He has not the advantage which he might have obtained by cross-examining the plaintiff's witnesses, and his contention on appeal must be limited either to questions of law or to such arguments as arise upon the evidence which the plaintiff has placed on the record. In the present case it appears to us that there are no grounds for interfering with the decree of the Court below. We think that there was sufficient evidence to prove the execution of the kabuliat, and also to prove that the arrears of rent for which this suit was instituted were, as a matter of fact, due. This appeal must, therefore, be dismissed with costs.


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