AI Structured Summary
Not yet generated for this judgment
Judgment
Govinda Menon, J.—O. S. No. 100 of 1947 on the file of the Court of the District Munsif of Vellore, stood posted for hearing to the 18th
February 1948 and on that day the presiding officer was on casual leave. The case was, therefore, adjourned to 4-3-1948 on which date the
defendant did not appear. An ''ex parte'' decree was passed against him as prayed for by the plaintiff. I. A. No. 356 of 1948 was filed by the
defendant to set aside the ''ex parte'' decree on the ground that he was not aware of the date to which the case had been adjourned, that he had
been under the impression that the adjourned date was the 5th March 1948 and on the ''bona fide'' belief that the case would be heard only on 5-
3-1948 he did not attend court on 4-3-1948 or engage his counsel to conduct the same.
Both the lower courts have disbelieved the plea of the defendant chiefly on the ground that the defendant did not offer himself for examination to
prove the allegations contained in his affidavit. The learned District Judge says that the vakil for the defendant in the Court of first instance refused
to put the defendant into the witness box although requested to do so by the opposite side; and, therefore, what was peculiarly within the
knowledge of the defendant was withheld from the knowledge of the Court. For these and other reasons, the application under Order 9 Rule 13,
C. P. C. which was rejected by the trial Court shared the same fate at the hands of the court of appeal.
In revision it is contended before me by the learned counsel for the petitioner that whatever might be the merits of the case, the lower courts
acted without jurisdiction in not setting aside the ''ex parte'' decree for the reason that the adjournment of the case from 18th February 1948 to the
4th March 1948 was illegal and ''ultra vires'' the powers of the officer who ordered it. It is urged that, on the absence of a Judge or presiding
officer on a particular day, the chief ministerial officer has no jurisdiction to adjourn the cases posted for that date, and such being the case the
adjournment to 4-3-1948 was entirely outside the powers of the ministerial officer and Jf that is so, a case wrongly posted to a date by an
unauthorised person need not be attended to by the parties to that litigation.
For this contention reliance was placed on two decisions of the Lahore High Court, each by a Single Judge. In the first of them -- ''Hukam Chand
v. Mani Shibrat Dass'', AIR 1934 Lah 984, Hilton J. expressed the opinion that when a Judge is absent the clerk has no power to fix the
adjournment date and failure to appear on a date so fixed does not justify the dismissal for default. The learned Judge relied upon an earlier
decision of the same Court reported in -- ''Jowala Sahi Dhera Shah v. Maya Das'', 33 P.L.R. 804. The learned Judge was further of opinion that
the absence of the party, on such an unauthorised adjourned date would not amount to any negligence on his part. The second of the Lahore cases
is by Agha Haidar J. in -- ''Gulam Haidar v. Diwan Iqbal Nath'', AIR 1936 Lah 1000, where the learned Judge relying upon the earlier decisions in
-- ''Jowala Sahai Dhera v. Maya Das'', 33 P.L.R. 804 and in --''Lalta Prasad v. Nand Kishore'', 22 All 66 , held that where the adjourned dates
have been fixed by the reader of the Court who has altered the dates signed by the Subordinate Judge, such practice is wholly irregular end should
be put an end to. In this case it does not appear from the facts stated that the adjournment was on account of the absence of the presiding officer
for illness or for other reasons. ''Ex concusses ''it has to be admitted that when there is a presiding officer in a court and when he adjourns the case
to a particular date the clerk or the reader has no right to alter the date at all; and therefore this latter case of Lahore has no bearing so far as the
facts of our case are concerned. . (4) No doubt the observations of Hilton J. in -- ''Hukam Chand v. Mani Shibrat Dass'', AIR 1934 Lah 984 are
of some help to the contention urged by the learned counsel for the petitioner. What we have to see is whether the practice and procedure
obtaining in this State would justify the adoption of the very wide observations made by the learned Judge in that case. u/s 24. of the Madras Civil
Courts Act, ministerial officers of a Court shall perform such duties as may from time to time be imposed upon them by the presiding officer of the
court. When a presiding officer is absent on account of illness or other reason from court, it is to be presumed that for performing the routine duties
which are not judicial on that day the presiding officer has the power to delegate it to the chief ministerial officer. No instructions have been issued
by this court to the subordinate courts as to what should be done with regard to cases which stand posted to a particular date when the presiding
officer is unavoidably absent on that day. In such state of circumstances it seems to me that the proper procedure which ought to be followed by
the subordinate courts is that such cases should be deemed to automatically stand adjourned to the next working day and on such next working
day when the presiding officer attends court he should either take up those cases on that day or adjourn them to suitable dates. But the practice
now obtaining, as I understand is, that the chief ministerial officer adjourns such cases to certain future dates. It is this practice that has given room
for the contention raised by the learned counsel for the petitioner. In my view there is nothing illegal or improper in the Chief ministerial officer
adjourning a case which stands posted to a particular date on which the judge does not attend court to a later date, if he is authorised to do so by
the presiding officer. Mere adjournment of a case which has not been part-heard cannot he said to be a judicial order; and, therefore, even if the
adjournment from the 1.8th February to the 4th March was done by the chief ministerial officer, still it cannot be held that the action was ''ultra
vires'' and that the case cannot be deemed to have been adjourned to 4th March 1948.
Moreover, in this case there is nothing to show -- because the petitioner has not offered to give evidence -- that on the 18th February he was
present in court. He should have been present in court or should have taken necessary steps for the conduct of the case on the 18th and since
there is no evidence that he was present, it cannot be held that there is any duty cast upon the court to inform him of the adjourned date when he
has not conformed to the imperative duty of being present in court. In -- ''Commissioner of Income Tax v. Perianna Pillai''. 58 M.L.J. 10
.Curgenven J. in delivering the judgment of the Full Bench observed as follows:
It is not the practice, much less a rule of procedure, even in the Court of Justice that an adjournment date is so intimated to an absent party. No
doubt if a party chooses to apply, in person or by representative, at the Court or Office, he can learn what orders have been passed. But he
cannot insist upon a telegram or a letter by post, any more than he con insist upon a letter by a special messenger.
if therefore, the petitioner by his own negligence in being absent on 18-2-1948 did not know the adjourned date, he has to thank himself. He
cannot turn round and say that the chief ministerial officer had no jurisdiction to adjourn the case to a free day on a subsequent occasion. He
should have presented. himself on 18-2-1948 and objected to it or he could have stated that that date would not be suitable to him or matters like
that. But in the absence of such protest it cannot be held that the action of the ministerial officer in fixing a date for the hearing is illegal or irregular.
The petitioner has to prove that he was not aware of the adjourned date and he has signally failed to do so.
As I have already remarked, the proper procedure that should have been followed by the presiding officer was to have taken up the cases
which had stood posted for 18-2-48 on the next day when he attended court and himself either heard them that day or adjourned them to a future
date. But the failure to do so is a mere irregularity which would not amount to a failure of justice.
This Revision Petition is therefore dismissed but in the circumstances without costs.