Arun Narayan Deb and Others vs M/s. Bharat Airways Ltd.

Ram Labhaya, J.—This petition of revision arises out of an application under Order 9, Rule 13, C. P. C. for selling aside an ex parte decree. The application was disallowed by the Subordinate Judge, Lower Assam Districts.

Ho found that the sufficient cause allaged had not been made out. On appeal the District Judge, Lower Assam Districts agreed with him that the evidence produced by the applicants in support of their allegation that they had an assurance or promise from the decree-holders that the suit would be withdrawn on the date of hearing could not be regarded as substantiated.

It was a case of an oath against an oath. Ho however allowed the appeal and set aside the ex parte decree on the ground that the defendants (M/s. Bharat Airways Ltd.) were presumably in-different or negligent in the prosecution of the case. The concern was about to be taken over by the Government of India. He thought that in the circumstances any negligence on the part of M/s.

Bharat Airways may not be allowed to stand in the way of the Indian Airlines Corporation, the successors of the defendants in the case to ask for setting aside of the ex parte decree.

On behalf of the petitioners it is urged that the order of the learned District Judge is apparently illegal. The cause alleged for non-appearance not having been substantiated, the application for setting aside the ex parte decree could not have been allowed. Under Ordeer 9, Rule 13, Civil P. C. an ex parte decree can be set aside only if the defendants are not served or if served when they show sufficient cause for non-appearance. Defendants in this case were served.

They were represented and their allegation, that the plaintiffs promised that the suit would be withdrawn, has not been proved. In these circumstances-it was wrong in law on the part of the learned District Judge to allow the application on considerations which are irrelevant and) even illegal. Mr. Gupta, the learned Counsel for the opposite party-has argued that the finding arrived at by the courts below on the question of fact involved in the case is erroneous. He has also argued that there was no negligence and in any case no mala fides could be attributed to the Indian Airlines Corporation and therefore the order of the learned District Judge should stand.

It appears to us that the matter really was concluded by the finding of fact arrived at in the courts below. The finding of fact is binding on the parties unless some material irregularity or defect of jurisdiction vitiated it. But the finding has not been challenged on any such ground. The consequence of the finding should have been that the order passed by the learned Subordinate Judge should have been upheld. Mr. Gupta has not been able to show that the ground on which the order of the learned Subordinate Judge has been reversed is valid.

The learned District Judge himself came to the-conclusion that there was an element of negligence or indifference in the case and this was due to the fact that the concern was going to be taken over by the Government of India. It is thus not a case in which on facts no negligence has been found; nor can it be regarded as a case in which it may be said that the defendants have been acting with duo care and caution in the prosecution of the case. They had a counsel and on the date of the hearing he retired from the case on the ground that he had no instructions.

If there was any promise or assurance given to the defendants about the withdrawal of the cases-they should at least have communicated the fact to their counsel. He was absolutely without instructions. They did not take any steps to see that the promise said to have been made to them would be fulfilled, In these circumstances we do not think-that the learned; District Judge was justified in law in reversing the order of the court below. Mr. Gupta has not been able to support it on the ground on which it rests.

The fact that the Indian Airlines Corporation became subsequently the statutory assignees of M/s. Bharat Airways would not invest the court with jurisdiction to set aside the ex parte decree on grounds other than those specified in Order 9, Rule 13. The provision is exhaustive in character and even the inherent jurisdiction of the court may not be resorted to for setting aside an ex parte decree for reasons other than those stated in the rule. Subsequent assignment to an innocent party could not be regarded as a sufficient cause for non-appearance within the meaning of Order 9, Rule 13. The order of the learned District Judge is therefore not sustainable. It is set aside and the order of the learned Subordinate Judge is restored, We make no order as to costs.

Deka, J.

I agree.