Dadu Missir and Others vs Dhani Mahto

Macpherson, J.—By the ex parte judgment of 28th November 1932, in Title Suit No. 66 of 1932 the suit of the plaintiff against six sets of defendants was decreed. Of the defendants No. 1 was the widow, No. 2 had taken two sale deeds from her and Nos. 3 to 9, 10 to 15, 16 to 18 and 19 to 20 had taken one each. It was held that the sale deeds were invalid against the plaintiff on the ground that he was the nearest gotia of the last male holder and defendant 1, his widow, had clearly only life interest in the properties of the defendants and could not sell them so as to bind the reversioners after her in the absence of any necessity. Two applications under Order 9, Rule 13, Civil P.C., were made, one by Dadu Missir who was defendant 3, and one by Dhani Mahto who was defendant 7, that is to say, by two applicants who were concerned in respect of the same sale deed. In their application they simply asked "that the Court set aside the ex parte decree in the above suit."

The Court held that summons had not been served upon either of them and ordered that "both the applications are allowed." Against that order the plaintiff decree-holders first filed an application in civil revision in the application of Dadu Missir but it was rejected, it is said by reason of certain defects. A similar application but with the defects removed was made in respect of the order in the application filed by Dhani Mahto, and it was admitted and has now been heard.

The substantial points taken are, first that the Court below had no jurisdiction to pass the order as it is in conflict with Order 9, Rule 14 which prohibits a decree from being set aside unless notice thereof has been served on the opposite party, and it is alleged, and it cannot be doubted, that the plaintiff who is petitioner 7 was not made a party at all and was not served with notice. The second point is that no restoration of the proceeding should have been allowed in so far as the other defendants than Dadu and Dhani or at most than defendants 3 to 9 are concerned. The difficulty here is that the only opposite party is Dhani and that no order adverse to the others can be passed without their being before the Court. But upon perusal of the applications made by Dadu and Dhani and the order passed by the Court below as quoted above it is not clear that the ex parte decree was set aside in respect of those other defendants.

This could only be done under the proviso to Order 9, Rule 13, and it is dubious whether the decree was of such a nature that it cannot be set aside as against, for example, defendants 3 to 9 without being set aside against the other defendants concerned not with the same sale deed as defendants 3 to 9 but with other sale deeds. The matter being uncertain, it will be open to the present parties to move this Court in the unlikely event of the learned Court below indicating by its proceedings that it was its intention to set aside the decision not as against the applicants or against defendants 3 to 9 only but as against the other defendants also, though prima facie the proviso does not cover their cases.

In respect of the other point Mr. Khursaid Husnain relies upon an affidavit to show that as summons was not served upon Dhani he had no knowledge of the existence of the minor plaintiff 7 and that in any case the principle of representation should apply as the minor''s father was one of the plaintiffs. I am not prepared to hold that the principle of representation can be urged as against the definite provisions of Rule 14 and it is difficult to see why there should have been knowledge of petitioner 6 who is precisely in the same position as petitioner 7 and not of the latter if proper care had been taken.

But for the complications introduced by the order in Dadu''s case I should have been inclined to send back the case for rehearing after making petitioner 7 a party, but in all circumstances now appearing, that course would not be helpful, and I think the proper order is to allow the trial to proceed in so far as the sale deed of defendants 3 to 9 is concerned. Accordingly this application is rejected in so far as the suit relates to the sale deed in which defendants 3 to 9 are concerned. In so far as the other defendants and their sale deeds are concerned it will be open as already indicated, to the parties to move this Court again in the circumstances noted above. The parties will bear their own costs.