Timber Private Ltd. vs Wazir Prabhat Singh and others

(1) These are two applications seeking revision of the orders dated May 2nd, 1970, passed by the Sub Registrar, Munsiff Jammu, in a suit for

possession of land measuring 22 kanals and 3 Marlas situate in Nowabad, Jammu.

(2) It appears that after the written statement of the defendants the trial court settled the issues on February 26th 1970 and called upon the

plaintiffs to adduce their evidence on March 24th 1970. No witness of the plaintiffs having been served for March 24th, 1970 the case was

adjourned to April 3rd, 1970. On this date the court began recording the statement of Ram Narain Patwari PW but could not conclude the same

as the defendants wanted the witness to file copies of some revenue record The case was accordingly adjourned to April 22nd 1970, on which

date the patwari not being present the court ordered that both he and another witness of the plaintiffs viz Ram Saran, petition writer, be summoned

for April 28th 1970. The case did not, however register any progress on April 28th, 1970 and the date following i. e. April 30th 1970 on account

of the absence of the witness. On the case coming up on May, 2nd 1970 the court declared it exparte against the defendants because of their

default in appearance, recorded the statement of Ram Saran and ordered the Patwari who was again absent to be summoned for May 13 1970.

On the next date i. e. May 13 1970, the counsel for the plaintiffs and the defendants were present but the court refused to record the presence of

the defendant's counsel on the ground that it had already placed his clients exparte The case had however to be adjourned to May 20th, 1970, as

the Patwari was again absent. On Mely 20th, 1970, the counsel for the defendants filed an application dated May ]3, 1970 for setting aside the

exparte proceedings and recalling Ram Saran petition writer stating interalia that his client had attended the court several times on May 2nd, 1970.

but the Presiding Officer was busy registering documents as Sub Registrar. The court therefrom adopted as somewhat queer procedure. Instead of

straightway granting time to the plaintiffs to file their objections to the application and adjourning the case, it recorded the statement of Ram Narain

Patwari without giving the defendants an opportunity of crossexamining the witness and then adjourned the case to May 26th, 1970 for objections

of the plaintiffs to the aforesaid application and for further proceedings. On the next date i. e. May 26th 1970, the court while dismissing the

defendant's application for setting aside the exparte order made on May 2nd 1970, on the ground that no sufficient cause for their absence on May

2nd, 1970, had been made out adopted a stiffer attitude against the defendants, recorded the statement of one of the plaintiffs, closed their

evidence & directed the case to be posted for exparte judgment on May 30th 1970.

(3) I have heard the learned counsel for the parties and have also gone through the relevant law.

(4) It is not in all cases that a court should insist on an affidavit in support of an application for setting aside exparte proceedings. If the application

is signed by an eminent counsel whose integrity is beyond doubt and if prima facie the cause for nonappearance appears to be reasonable, the

court may set aside the ex parte order on such terms as it may think fit. In the circumstances set out in the application the court ought to have set

aside the exprate order passed by it on May 2nd 1970 and especially when the application was not seriously opposed by the other side. Even

assuming without holding that there was no sufficient cause for the defendant's nonappearance on May 2nd 1970 and their being relegated to the

stage at which the suit was on that date, the court could no prevent them from participating in the proceedings taken on May 23rd 1970 and

thereafter. In refusing to allow the defendants to participate in the proceedings with effect from May 13th 1970, the trial court appears to have

acted illegally. The previous order setting aside the case exparte can be no bar to allowing a defendant wanting to take part in the proceedings at

the stage at which they are when he appears. In that case it is not necessary for him to get the previous order placing him exparte set aside. I am

fortified in this view by a decision of the Supreme Court in Sangram Singh V. Election Tribunal Kotah and another AIR 1955 SG 425 at page

432, where it was held : .

''If a party does appear on"" the day to which the hearing of the suit is adjourned."" he cannot be stopped from participating in the proceedings

simply because he did not appear on the first or some other hearing.

(5) Again in Arjun Singh V. Mohindra Kumar and others AIR 1964 Supreme Court, 993 at page 1004, their Lordships of the Supreme court

observed :

''On the terms of order IX R 7 if the defendant appears on the adjourned date and satisfies the court by showing good cause for his

nonappearance on the previous day or days he might have the earlier proceedings recalled"" set the clock back"" and have the suit hearing in his

presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take

part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he

occupied at the commencement of the trial.

(6) I would, therefore, accept the application set aside the order made on May 2nd, 1970 and the subsequent exparte proceedings taken by the

learned trial court against the defendants and remit the case to the trial court with a direction to allow them i. e the defendants to appear and

participate in the proceedings, recall the plaintiff's witnesses examined on or after May 2nd 1970, if a request is made by the defendants on that

behalf and allow them an opportunity of cross examining these witnesses. The petition writer shall however be recalled at the expense of the

defendants. The parties are directed to appear before the trial court on January 11, 1971, for further directions in the case.