Case: Arjun Singh Vs. Mohindra Kumar &amp; Others

were thus linked together, the application made for the restoration of suit 20 of 1953 constituted a finding by a competent Court that there was no good or sufficient cause for the non-appearance of the appellant in Court for any suit on May 29, 1958. The suits were, no doubt, ordered to be tried jointly in the sense that the evidence recorded in one suit was to be treated as evidence in the other suits also, suit 134 of 1956 being treated as the main suit in which evidence was recorded, but that affords no basis for the contention that every application made in one suit for the relief which is pertinent only to that suit must be treated as an application made in every other suit. Thus, for instance, in the present case if no application were made for the restoration of suit 20 of 1953 which had been dismissed for default it could hardly be contended that because of the application made in suit 134 of 1956 it wold serve the purpose of an application for the restoration of that other suit. Similarly, if an application had been made for the restoration of suit 20 of 1953 and the Court found that there was sufficient cause for setting the dismissal aside that would by itself hardly be a ground for setting aside the ex parte decree in suit 134 of 1956. These features are sufficient to demonstrate that the circumstances that the suits were being tried jointly has no bearing on the matter now in controversy and that so far as regards the ex parte orders in the three suits each had to be considered independently and had to be disposed of also independently notwithstanding that the same grounds might have sufficed for the relief prayed for in the independent applications. There is another aspect from which this matter could be viewed. The point at issue in the application under O IX R. 9 filed to set aside the dismissal for default in suit 20 of 1953 was whether the plaintiff had sufficient cause for his non-appearance "when the suit was called on for hearing" (vide O. IX R. 9). The suit called on for hearing in that rule obviously refers to suit 20 of 1953. A decision, therefore, that there was no sufficient cause for the non-appearance of the plaintiff in that suit would not be eadem questio with the matter which arose for decision when the application under O. IX R. 7 was made in suit 134 of 1956 notwithstanding that the facts upon which the issue depended was similar and possibly identical. This is a further reason why we are unable to accept the submission of learned Counsel.22. The last of the points that was urged by Mr. Pathak was that the decree that was actually passed in suit 134 of 1956 was not in reality an ex parte decree but one on the merits. It was urged that the proceeding on May 29, 1958 satisfied the conditions of O. XVII R. 3 and not O. XVII R. 2. There are several reasons why this submission is entirely without substance. In the first place during the entire proceeding right up to the hearing of the present application which was made under O. IX R. 13 the Court as well as both the parties proceeded on the basis that the decree was passed ex parte. The order sheet on May 29, 1958 we have extracted earlier contained a direction by the Court that the case will proceed ex parte for the reason that Counsel for the defendant reported no instructions. And it must be noticed that by that date the entire hearing was over. The application that was made to set aside this order to proceed ex parte was filed on the basis that the previous hearing was ex parte and contested by the respondent on the same basis. The order of the High Court is revision on September 4, 1958 proceeds on the same basis. When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings not being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under O. XVII R. 3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule reads :"Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."In regard to this the Civil Judge stated:"The ground on which this objection is based is that 29-5-58 was the date adjourned at the instance of the defendant-applicant. I do not think that this ground has any force. It appears from the record that on 28-5-58 the cases were adjourned to 29-5-58 on a joint application of the parties to the effect that a compromise would be filed. It was not, therefore, an adjournment sought by the defendant alone, moreover, that application was made by him in his own suit No. 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them were consolidated. The adjournment of those two suits, therefore, cannot be said to be at the instance of the defendant."Learned Counsel was unable to point any flaw in the facts here stated. It would, therefore, follow that the terms of O. XVII R. 3 were not attracted at all and that suit 134 of 1956 was decreed not on merits but really ex parte as had been expressly stated by the learned Civil Judge when he passed that decree.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in laterdecision, therefore, that there was no sufficient cause for the non-appearance of the plaintiff in that suit would not be eadem questio with the matter which arose for decision when the application under O. IX R. 7 was made in suit 134 of 1956 notwithstanding that the facts upon which the issue depended was similar and possibly identical. This is a further reason why we are unable to accept the submission of learnedthe first place during the entire proceeding right up to the hearing of the present application which was made under O. IX R. 13 the Court as well as both the parties proceeded on the basis that the decree was passed ex parte. The order sheet on May 29, 1958 we have extracted earlier contained a direction by the Court that the case will proceed ex parte for the reason that Counsel for the defendant reported no instructions. And it must be noticed that by that date the entire hearing was over. The application that was made to set aside this order to proceed ex parte was filed on the basis that the previous hearing was ex parte and contested by the respondent on the same basis. The order of the High Court is revision on September 4, 1958 proceeds on the same basis. When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings not being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under O. XVII R. 3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule readsany party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suitregard to this the Civil Judgeground on which this objection is based is that 29-5-58 was the date adjourned at the instance of the defendant-applicant. I do not think that this ground has any force. It appears from the record that on 28-5-58 the cases were adjourned to 29-5-58 on a joint application of the parties to the effect that a compromise would be filed. It was not, therefore, an adjournment sought by the defendant alone, moreover, that application was made by him in his own suit No. 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them were consolidated. The adjournment of those two suits, therefore, cannot be said to be at the instance of theCounsel was unable to point any flaw in the facts here stated. It would, therefore, follow that the terms of O. XVII R. 3 were not attracted at all and that suit 134 of 1956 was decreed not on merits but really ex parte as had been expressly stated by the learned Civil Judge when he passed that decree.