Anand Swaroop vs Kishanchand

P.R. Sharma, J.—This revision application has been preferred against the order dated the 16th of March, 1960 passed by Shri B. N. Saxena, Addl. Sessions Judge Gwalior, in Civil Misc. Appeal No. 77 of 1955.

Civil Suit No. 98 of 1952 on the file of the Civil Judge Class II Gwalior was fixed for plaintiffs'' evidence to be recorded on 21-9-1955. The defendant and his counsel were found absent on that day when the case was called on for hearing. An ex-parte order was passed against the defendant and the case was posted for evidence of the plaintiffs to be recorded on 24-9-1955. On that day the plaintiffs'' evidence was recorded and the case was fixed for ex-parte judgment on 26-9-1955. At the close of the hearing of the case on 24-9-1955 the defendant put in an application for setting asid the ex-parte order dated 21-9-1955. This application was rejected and an ex-parte decree was passed. An application for setting aside the ex-parte decree was rejected by the Court of first instance. On appeal before the learned Additional District Judge Gwalior the order refusing to set aside the ex-parte decree was reversed The plaintiff have now come up in revision against that order.

The contention of the learned counsel for the applicants is that the lower appellate Court acted illegally in basing its order on an affidavit filed by the defendant in support of his application to set aside the ex-parte decree. It may be observed that the trial Court had refused to take that that affidavit into account on the ground that it had not passed any order under Order 19 rule C.P.C. permitting the defendant to prove by an affidavit the sufficiency of the cause which prevented him from attending the Court on 21-9-1955. I am pained to find that the observations as to law on the subject contained in paras 7.8 & 9 of the order passed by the lower appellate Judge betray complete unfamiliarity with the decisions of the Nagpur High Court on the points raised before the learned Judge.

It was held in AIR 1944 161 (Nagpur) that Order 19 Rule 2 C.P.C. applies only to interlocutary applications. It cannot apply to applications of a substantive nature such as for instance as for instance those uner Order 21 Rule 90, Order 21 Rule 100, Order 33 Rule 2, Order 9 Rule 13 etc., substantive applications are those which initiate proceedings; whereas applications relating to matters incidental to proceedings already pending in the Court are termed as interlocutory applications.

This case was followed in Gopikabai vs. Narayan (A.I.R. 1953 Nag 135) wherein it was observed that an affidavit cannot be taken as evidence unless it is permitted to be given under the provisions of Order 19 C.P.C.

An application under Order 9 Rule 13 CPC is an application of a substantive nature. In such proceedings unless the Court passes an order under Order 19 Rule 1 C.P C. permitting a party to prove a certain point by an affidavit, the party concerned has no option but so prove the facts upon which his application under Rule 13 is based by legal evidence. The order passed by the learned Addl. District Judge must, therefore, be set aside. The question which remains to be decided is whether I should leave the matters here or look further into the circumstances of the case in order to determine whether the order passed by the trial Court was in accordance with law The learned counsel for the opponent submitted that the medical certificate filed by the defendant was ruled out of consideration only on the ground that it related to illness on a prior date. It is always a matter depending on the nature of the illness whether a certificate of a prior date should be sufficient to prove the continuance of illness till the date of hearing on which the default in appearance was committed. The learned counsel contended that the medical certificate alone should have been considered sufficient to account for the defendant''s absence on 21-9-1955. I am afraid it is not possible to accept this contention. I would consider it proper to allow an opportunity to the defendant to prove the sufficiency of the reason for his absence on 21-9-1955 by evidence in accordance with law. The defendant shall be given a date to be fixed by the trial Court on which he should be permitted to tender all his evidence in support of his application under Order 9 Rule 13 C.P.C. In no case should an adjournment be permitted. The defendant shall be given this further opportunity of proving his case only on payment of costs in the sum of Rs. 100/- to the opposite party.

This revision application is, therefore, allowed with costs, The order passed by the lower appellate Court is set aside and the case is remanded to the Court of first instance with a direction to dispose of the application for setting aside the ex parte decree in accordance with law and the observations made by me above. Counsel''s fee Rs. 25/-.