Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan
BS650890
PRIVY COUNCIL
Before:-Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith and Sir Robert P. Collier.
0 D/d. 21/
22.11.1878
Sahibzada Zeinulabdin Khan - Defendant
Versus
Sahibzada Ahmed Raza Khan - Plaintiff
On Appeal from the High Court at Allahabad.
Agent for the Appellant : - T.L. Wilson.
Act VIII of 1859, Sectiton 119 - Right of Appeal from Decree obtained ex parte.
[Para ]
In sect. 119 of Act VIII of 1859, the words "no appeal shall lie from a judgment passed ex parte against a Defendant who has not appeared," relato to the case of a Defendant who has not appeared at all in the suit, and not to a Defendant who has once appeared, hut who fails to appear on a day to which the cause has been adjourned.
Appeal from a decree of the High Court (August 26, 1875) which dismissed an appeal from an order of the subordinate Judge of Moradabad (April 8, 1874).
The ground of such dismissal was that the last mentioned order having been obtained ex parte, no appeal lay to the High Court, and that the Appellant's remedy was to follow the procedure prescribed by sect. 119 of the Civil Procedure Code.
The judgment of the High Court was as follows:--
"The suit was instituted on the 14th of September, 1872, and after much delay, owing to the residence of both parties in foreign territory, the hearing was, at the request of the pleaders of both parties, adjourned for the 5th of January, 1873, issues were framed, and October the 28th fixed for the hearing; the suit was not called on that date, but on the 7th of November, 1873. It was again adjourned at the like request to the 2nd of February, and subsequently to the 8th of April. On the 6th of April the Defendant Appellant submitted a petition praying for a further adjournment, on the plea that his pleader had gone to Calcutta to consult the Advocate-General, and could not return in time. This petition was not presented by a pleader nor by any duly authorised agent, and was rejected. On the 7th of April the Defendant's pleader telegraphed to the Subordinate Judge, requesting him to postpone the hearing. The Subordinate Judge refused to consider this irregular application, and on the 8th of April the case was called on in due course. Although the Defendant had an agent in Moradabad, no other pleader than Ganesh Pershad, who was absent in Calcutta, was appointed, and the Defendant appearing neither in person nor by pleader, on the 8th of April the ease was heard and decided ex parte under the provisions of sects. 147 and 111. The Appellant subsequently took the proper step of applying to the Subordinate Judge, under sect. 119, for an order to set aside the judgment, but unfortunately he did not proceed with that application, and it was struck off for default, the Appellant being advised by his counsel to proceed by way of appeal. He is met by the objection that the appeal does not lie, as the judgment was passed ex parte. The Appellant's counsel urges that the case was not heard by the Subordinate Judge ex parte under sect. 111, that the default of the Appellant was such a default as is contemplated in sect. 145, and not such a default as is contemplated in sect. 147. It appears clear to us that the former section applies where the parties appear, but either of them fails to proceed with the case, while sect. 147 applies to cases like the present, in which at an adjourned hearing a party failed to appear. If the Judge heard the suit at all in the absence of the Appellant, he could only do so under the provisions of sect. 111. Having the option of proceeding with the hearing, or again adjourning the case, he proceeded to hear and determine it.
"Then it is contended that the Appellant was entitled to proceed either by way of appeal or by an application under sect. 119, and Kali Churn Butt v. Modhoo Soodun Ghose 6 Suth. W.R. 86 is relied on, but that ruling has not apparently been followed in Administrator General of Bengal v. Lala Dyaram Dass 6 Beng. L.R. 689, and in Purus Ram v. Jyuntee Pershad N.W.P. Rep. (1869), 59 it has been held that no appeal lies.
"The omission to follow the procedure required by sect. 119 has deprived the Appellant of all remedy. The appeal must therefore be dismissed with costs."
Leith, Q.C., and Arathoon, for the Appellant, contended that sect. 119 of Act VIII of 1859 only applied to cases where the Defendant had entered no appearance in the suit at all: see Macpherson's Civil Procedure, p. 126. [SIR JAMES W. COLVILE referred to sect. 147.] There is a sensible distinction between the case of a Defendant not appearing at all, and the case of his appearing, putting in his defence, but absenting himself from the final hearing. [SIR MONTAGUE E. SMITH:--In the one case the Judge may decide on default; in the other the case must be proved. SIR ROBERT P. COLLIER:--It is against policy to allow a Defendant to lie by in the first Court, and then dispute the case in the second Court.] Sect. 147 does not apply, for it relates to preliminary hearings and adjournments from first hearings. Reference was made to Goluckbur v. Bishonath Gearee Marshall's Rep. 32 ; Gorachand Goswami v. Raghu Mandal 3 Beng. Law Rep. App. 121; Amritnath Jha v. Baboo Roy Dhunpat Sing Bahadoor 8 Beng. Law Rep. 44. [SIR JAMES W. COLVILE:-If he proceeded under sect. 148, there are two clear decisions of the Madras High Court that sect. 119 will not apply; see notes to Broughton's Civil Procedure Code, sects. 147 and 148.] By the general law the Appellant has a right of appeal, and it has not been taken away. See Kali Churn Butt v. Modhoo Soodun Ghose 6 Suth. W.R. 86. They distinguished the case of Administrator General of Bengal v. Lala Dyaram Doss 6 Beng. L.R. 689, and admitted that Purus Ram v. Jyuntee Pershad N.W.P. Rep. (1869), 59 was against them.
Cases Referred :-
Administrator General of Bengal v. Lala Dyaram Dass 6 Beng. L.R. 689.
Amritnath Jha v. Baboo Roy Dhunpat Sing Bahadoor 8 Beng. Law Rep. 44.
Bengal v. Lala Dyaram Doss 6 Beng. L.R. 689.
Goluckbur v. Bishonath Gearee Marshall's Rep. 32.
Gorachand Goswami v. Raghu Mandal 3 Beng. Law Rep. App. 121.
Kali Churn Butt v. Modhoo Soodun Ghose 6 Suth. W.R. 86.
Purus Ram v. Jyuntee Pershad N.W.P. Rep. (1869), 59.
JUDGMENT
Sir Barnes Peacock :- The question in this case is whether the first part of Section 119 of Act VIII of 1859 applies to a case which has been decided under the provisions of Section 147 of the same Act. That part of Section 119 is in the following words: " No appeal shall lie from a judgment passed ex parte against a Defendant who has not appeared." Section 119 must be read together with Sections 109, 110, and 111. Section 109 says: " On the day fixed in the summons for the Defendant to appear and answer, the parties shall be in attendance at the Court House in person or by a pleader, and the suit shall then be heard, unless the hearing be adjourned to a future day which shall be fixed by the Court." Section 110 says : " If on the day fixed for the Defendant to appear and answer, or any other day subsequent thereto to which the hearing of the suit may be adjourned, neither party shall appear either in person or by a pleader when duly called upon by the Court, the suit may be dismissed." There the words are " If on the day fixed for the Defendant to appear and answer, or any other day subsequent thereto to which the hearing of the suit may be adjourned." Then comes Section III, which says: "If the Plaintiff shall appear in person;"--it does not say " on the day fixed, or on any subsequent day," but simply " If the Plaintiff shall appear in person or by a pleader, and the Defendant shall not appear in person or by a pleader, and it shall be proved to the satisfaction of the Court that the summons was duly served, the Court shall proceed to hear the suit ex parte." Sections 109 and 111, taken by themselves, clearly relate to the appearance of parties and to their non-appearance at the first hearing of the suit. The 146th and 147th sections are enactments relating to adjournments. Section 147 enacts that " If on any day to which the hearing of the suit may be adjourned, the parties, or either of them, shall not appear in person or by pleader, the Court may proceed to dispose of the suit in the manner specified in Section 110, Section III, or Section 114, as the case may be, or may make such other order as may appear to be just and proper in the circumstances of the case." There is no enactment in that section that, in case the Court disposes of the suit in the manner specified in Section III (the section which applies to the present case), the first part of Section 119 shall apply to such a judgment. Under Act VIII. of 1859, the general rule is that an appeal lies to the High Court from a decision of a civil or subordinate Judge, and a Defendant ought not to be deprived of the right of appeal, except by express words or necessary implication. Looking at all the sections together, their Lordships are of opinion that the words " who has not appeared," as used in Section III, mean, "who has not appeared at all," and do not apply to the case of a Defendant who has once appeared, but who fails to appear on a day to which the cause has been adjourned.
There are several cases to that effect decided by the High Court in Calcutta. Marshall's Reports, p. 32 ; 3rd Bengal Law Reports, Appendix, p. 121; and 6th Weekly Reporter, p. 86.
Two cases were referred to by the learned Judges who decided this case,--a case in 6th Bengal Law Reports, p. 689, and one from the North-Western Provinces Reports of 1869, p. 59. Their Lordships have referred to those decisions. It appears to them that the case cited from the 6th Bengal Law Reports, p. 689, so far from being an authority in support of the decision of the High Court, is rather an authority against it. The case which is cited from the North-Western Provinces Reports of 1869, p. 59, is certainly in conflict with the several decisions in the High Court at Calcutta to which reference has been made, and which in the opinion of their Lordships were correctly decided.
Under these circumstances their Lordships will humbly advise Her Majesty that the decision of the High Court was erroneous, and that the case be remanded to the High Court to hear and determine the appeal. The Respondent must pay the costs of this appeal.
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