Sangram Singh Vs. Election Tribunal,
Kotah,Bhurey Lal Baya  INSC 17 (22 March 1955)
BOSE, VIVIAN JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION: 1955 AIR 425 1955 SCR (2) 1
Representation of the People Act (XLIII) of
1951, section 105 Effect of-Finality and conclusiveness of orders of Election
Tribunals -Article 136 of Constitution--Jurisdiction of Supreme
Court-Jurisdiction and powers of High Courts under Article 226 of the Constitution-Whether
in any way affected-Writ of Certiorari Principles governing grant of-Laws of
procedure Grounded on natural justice-Designed to promote
justice-Representation of the People Act of 1951, subsection (2) of section 90Procedure
for trial of Election petitions-Code of Civil Procedure, 1908, sections 27, 30
and 32-Distinction between 'Penalty" for non-appearance of parties to suit
and consequences flowing from non-appearance in response to summons-Code of
Civil Procedure, 1908, Order 5, rules I and 5 and Order 8, rules I and 14,
Order 9, rules 6(1)(a)2,7,12 and 13-Order 15, rule 3Order 17, rules 1(1) and 2Trial
of suits-First hearing and adjourned hearing Distinction-Consequences of
non-appearance-Ex parte hearing and ex parte order-Principles governing
discretion of Courts-Adjournment of hearing-Convenience of witnesses.
Notwithstanding the provision in section 105
of the Representation of the People Act (Act XLIII) of 1951 that every order of
an Election Tribunal made under the Act shall be final and conclusive, the High
Court and the Supreme Court have unfettered jurisdiction to examine whether the
tribunal, in the exercise of its undoubted jurisdiction, has acted legally or
otherwise, This jurisdiction cannot be taken away by a legislative device that
purports to confer power on a tribunal to act illegally. The legality of an act
or conclusion is something that exists outside and apart from the decision of
an inferior tribunal. It is a part of the law of the land which cannot be
finally determined or altered by any tribunal of limited jurisdiction. The High
Courts and the Supreme Court alone can determine what the law of the land is
vis-a-vis all other Courts and tribunals and they alone can pronounce with
authority and finality on what is legal and what is not. All that an inferior
tribunal can do is to reach a tentative conclusion which is subject to review
under Articles 226 and 136 of the Constitution. The jurisdiction of the High
Courts under Article 226, with that of the Supreme Court above them, remain it-,
fullest extent despite section 105 of the Representation 2 of the People Act.
Limitations on the exercise of, such jurisdiction can only be imposed by the
The powers of the High Courts under Article
226 of the Constitution are discretionary and, though no limits can be placed
upon that discretion, it must be exercised along recognised lines and not
arbitrarily. In the exercise of their jurisdiction under Article 226, the High
Courts should not act as Courts of Appeal or revision to correct mere errors of
law which do not occasion injustice in a broad and general sense. It is a sound
exercise of discretion to bear in mind the policy of the legislature to have
disputes about special rights, as in election cases, decided as speedily as may
be. The High Courts should not therefore entertain petitions for prerogative
writs lightly in this class of case.
The appellant filed an election petition
under section 100 of the Representation of the People -Act. He appeared on the
first and 'Subsequent hearing at Kotah. The proceedings were then adjourned for
certain hearings at Udaipur. The appellant did not appear on the first three
hearings at that place so the tribunal proceeded ex parte. His counsel appeared
on the fourth hearing but was not allowed to take any further part in the
proceedings because no good cause was shown for the earlier non-appearance and
so the tribunal refused to set aside its "ex parte order".
Held, (1) Under section 90(2) of the
Representation of the People Act the procedure for the trial of election
petitions is to be, as near as may be, the same as in the trial of suits under
the Civil Procedure Code;
(2) under the Civil Procedure Code there is
no such thing as an ex parte order for non-appearance" which precludes
further appearance at an adjourned hearing until the Order is set aside. If a
party appears at an adjourned hearing the court has a discretion (which must be
exercised judicially) either to allow him to appear oil such terms as it thinks
fit, or to disallow further appearance; but (3) if he is allowed to appear
then, unless good cause is shown under Order 9, rule 7 for the earlier
non-appearance the proceedings must continue from the stage at which the later
appearance is entered and the party so appearing cannot be relegated to the
position he would have occupied if he had appeared at the earlier hearing or
hearings; also, (4) in exercising its discretion the court must see that
justice is done to all concerned, including the witnesses Rule 6 (1) (a) of
Order 9 of the Civil Procedure Code is confined to the first hearing of the
suit and does not apply, per se to subsequent hearings. 0. 9, r. 7 gives a
party a right to be relegated to the position he would have occupied if he had
appeared at the earlier hearing or hearings if he shows good cause. It does not
per se prevent further appearance when no good cause is shown. O. 17, r. 2
applies at the adjourned hearing and there, the Court is given a wide
discretion to make such order as it thinks fit.
3 A code of procedure is a body of law
designed to facilitate justice and further its ends, and should not be treated
as an enactment providing for punishments and penalties. The laws of procedure
are grounded on the principle of natural justice which requires that men should
not be condemned unheard, that decisions should not be reached behind their
backs, that proceedings that affect their lives and property should not
continue in their absence and that they should not be precluded from
participating in them. Subject to clearly defined exceptions the laws of
procedure should be construed wherever reasonably possible, in the light of
that principle. The court is invested with the widest possible discretion to
see that justice is done to all concerned. No hard and fast rule can be laid
down; and the court in the exercise of its judicial discretion will have, in a
given case, to determine what consequences are to follow from nonappearance. An
order awarding costs, or an adjournment, or the consideration of the written
statement and the framing of the issues on the spot, can in some cases meet the
ends of justice. In other cases, more drastic action may be called for.
By "ends of justice" is meant not
only justice to the parties but also to witnesses and others who may be inconvenienced.
The convenience of the witnesses, which deserves the greatest consideration, is
ordinarily lost sight of in this class of case. Justice strongly. demands that
this unfortunate section of the general public compelled to discharge public
duties, usually at loss and inconvenience to themselves should not be ignored
in the over-all picture of what will best serve the ends of justice; and it may
well be a sound exercise of discretion in a particular case to refuse an
adjournment and permit the plaintiff to examine the witnesses present and not
allow the defendant to cross-examine them. But broadly speaking, after all the
various factors have been taken into consideration and carefully weighed, the
endeavour should be to avoid snap decisions and to afford the parties a real
opportunity of fighting out their cases fairly squarely.
The Court must in every case exercise the
discretion given to it. Its hands are not tied by a so-called "ex parts
order", and, if it thinks they are tied by rule 7 of Order 9 of the Code,
then it is not exercising the discretion which the law says it should, and in a
given case interference may be called for.
Held, that the Election Tribunal did not
exercise the discretion given to it by law because of a misapprehension that it
had none. It was directed to do so now and to proceed with the further hearing
of the case in accordance with law.
Hari Vishnu v. Ahmed Ishaque ( 1 S.C.R.
1104), Darga Shankar Mehta v. Thakur Raghuraj Singh ( 1 S.C.R.
267), and Raj Krushna Bose v. Binod Kanungo
913, 918), applied. Hariram v. Pribhdas
(A.I.R. 1945 Sind 98, 102), distinguished. Sewaram v. Misrimal (A.I.R. 1952
Raj. 12, 14), overruled. Venkatasubbiah v. Lakshminarasimham (A.I.R. 1925 Mad.
1274), approved Balakrishna Udayar v. Vasudeva Ayyar (I.L.R. 40 Mad, 793), 4 T.
M. Barret v. African Products Ltd. (A.I.R. 1928 P.C. 261, 262) and Sahibzada
Zeinitlabdin Khan v. Sahibzada Ahmed Baza Khan (5 I.A. 233, 236), applied.
Case remitted to, the Tribunal:
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 214 of 1954.
Appeal under Article 133 (1) (c) of the
Constitution of India from the Judgment and Order dated the 17th July 1953 of
the, High Court of Rajasthan (Bapna and Ranawat JJ.) in Civil Writ Application
No. 128 of 1953.
R. K. Rastogi and Ganpat Rai, for the
R. C. Prasad, for S. L. Chhibber, for
respondent No. 2.
1955. March 22. The Judgment of the Court was
delivered by BOSE J.-The second respondent Bhurey Lal filed an election
petition under section 100 of the Representation of the People Act against the
appellant Sangram Singh and two others for setting aside Sangram Singh's
The proceedings commenced at Kotah and after
some hearings the Tribunal made an order on 11-12-1952 that the further
sittings would be at Udaipur from the 16th to the 21st March, 1953. It was
discovered later that the 16th was a public holiday, so on 5-1-1953 the dates
were changed to "from the 17th March onwards" and the parties were
On the 17th the appellant did not appear nor
did any of the three counsel whom he had engaged, so the Tribunal proceeded ex
parte after waiting till 1-15 P.m.
The Tribunal examined Bhurey Lal and two
witnesses on the 17th, five more witnesses on the 18th and on the 19th the case
was adjourned till the 20th.
On the 20th one of the appellant's three
counsel, Mr, Bharat Raj, appeared but was not allowed to 5 take any part in the
proceedings because the Tribunal said that it was proceeding ex parte at that
stage. Three more witnesses were then examined.
On the following day, the 21st, the appellant
made an application asking that the ex parte proceedings be set aside and
asking that he be allowed to cross-examine those of Bhurey Lal's witnesses
whose evidence had already been recorded.
The Tribunal heard arguments and passed an
order the same day rejecting the application on the ground that the appellant
had "failed to satisfy ourselves that there was -any just or unavoidable
reason preventing the appearance of respondent No. 1 himself or of any of his
three learned advocates between the 17th and the 19th of March, 1953", and
it added"at all events, when para 10 of the affidavit makes it clear that
Shri Bharatraj had already received instructions to appear on 17-3-1953 there was
nothing to justify his nonappearance on the 18th and 19th of March, 1953, if
not, on the 17th as well".
The appellant thereupon filed a writ petition
under article 226 of the Constitution in the High Court of Rajasthan and
further proceedings before the Tribunal were stayed.
The High Court rejected the petition on
17-7-1953 on two grounds(1) "In the first -place, the Tribunal was the
authority to decide whether the reasons were sufficient or otherwise and the
fact that the Tribunal came to the conclusion that the reasons set forth by
counsel for the petitioner were insufficient cannot be challenged in a petition
of this nature" and (2) "On the merits also, we feel no hesitation in
holding that counsel for the petitioner were grossly negligent in not appearing
on the date which had been fixed for hearing, more than two months
Five months later, on 16-12-1953, the High
Court granted a certificate under article 133(1) (C) of the Constitution for
leave to appeal to this Court, 6 The only question before the High Court was
whether the Tribunal was right in refusing to allow the appellant's counsel to
appear and take part in the proceedings on and after the 20th of March, 1953,
and the first question that we have to decide is whether that is sufficient
ground to give the High Court jurisdiction to entertain a writ petition under
article 226 of the Constitution. That, in our opinion, is no longer res
integra. The question was settled by a Bench of seven Judges of this Court in
Hari Vishnu v. Ahmad Ishaque(1) in these terms:
"Certiorari will also be issued when the
Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction,
as when it decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice".
That is exactly the position here.
It was urged that that cannot be so in
election matters because of section 105 of the Representation of the People Act
of 1951 (Act XLIII of 1951), a section which was not considered in the earlier
case. It runs thus:
"Every order of the Tribunal made under
this Act shall be final and conclusive".
It was argued that neither the High Court nor
the Supreme Court can itself transgress the law in trying to set right what it
considers is an error of law on the part of the Court or Tribunal whose records
are under consideration. It was submitted that the legislature intended the
decisions of these tribunals to be final on all matters, whether of fact or of
law, accordingly, they cannot be said to commit an error of law when, acting
within the ambit of their jurisdiction, they decide and lay down what the law
is, for in that sphere their decisions are absolute, as absolute as the
decisions of the Supreme Court in its own sphere.
Therefore, 'it was said, the only question
that is left open for examination under article 226 in the case of an Election
Tribunal is whether it acted within the scope of its jurisdiction.
(1)  1 S.C.R. 1104,1121, 7 But this,
also, is no longer open to question. The point has been decided by three
Constitution Benches of this Court. In Hari Vishnu v. Ahmad Ishaque (1) the
effect of section 105 of the Representation of the People Act was not
considered, but the Court laid down in general terms that the jurisdiction
under article 226 having been conferred by the Constitution, limitations cannot
be placed on it except by the Constitution itself: see pages 238 and 242.
Section 105 was, however, considered in Durga Shankar Mehta v. Raghuraj
Singh(1) and it was held that that section cannot cut down or affect the
overriding powers of this Court under article 136. The same rule was applied to
article 226 in Rai Krushna Bose v. Binod Kanungo and others(1) and it was
decided that section 105 cannot take away or whittle down the powers of the
High Court under article 226. Following those decisions we hold that the
jurisdiction of the High Court under article 226 is not taken away or curtailed
by section 105.
The jurisdiction which articles 226 and 136
confer entitles the High Courts and this Court to examine the decisions of all
Tribunals to see whether they have acted illegally.
That jurisdiction cannot be taken away by a
legislative device that purports to confer power on a tribunal to act illegally
by enacting a statute that its illegal acts shall become legal the moment the
tribunal chooses to say they are legal. The legality of an act or conclusion is
something that exists outside and apart. from the decision of an inferior
tribunal. It is a part of the law of the land which cannot be finally
deter-mined or altered by any tribunal of limited jurisdiction. The High Courts
and the Supreme Court alone can determine what the law of the land is vis-a-vis
all other courts and tribunals and they alone can pronounce with authority and
finality on what is legal and what is not. All that an inferior tribunal can do
is to reach a tentative conclusion which is subject to review under articles
226 and 136. Therefore, the jurisdiction of the High (1)  1 S.C.R. 1104,
1121. (2)  1 S.C.R. 267.
(3) 1954 S.C.R. 913, 918.
8 Courts under article 226 with that of the
Supreme Court above them remains to its fullest extent despite section 105.
That, however, is not to say that the
jurisdiction will be exercised whenever there is an error of law. The High
Courts do not, and should not, act as Courts of appeal under article 226. Their
powers are purely discretionary and though no limits can be placed upon that
discretion it must be exercised along recognised lines and not arbitrarily; and
one of the limitations imposed by the Courts on, themselves is that they will
not exercise jurisdiction in this class of case unless substantial injustice
has ensued, or is likely to ensue. They will not allow themselves to be turned
into Courts of appeal or revision to set right mere errors of law which do not
occasion injustice in a broad and general sense, for, though no legislature can
impose limitations on these constitutional powers it is a sound exercise of
discretion to bear in mind the policy of the legislature to have disputes about
these special rights decided as speedily as may be. Therefore, writ petitions
should not be lightly entertained in this class of case.
We now turn to the decision of the Tribunal.
The procedure of these tribunals is governed by section 90 of the Act.
The portion of the section that is relevant
here is subsection (2) which is in these terms:
"Subject to the provisions of this Act
and of any rules made there under, every election petition shall be tried by
the Tribunal, as nearly as may be, in accordance with the procedure applicable
under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of
We must therefore direct our attention to
that portion of the Civil Procedure Code that deals with the trial of suits.
Now a code of procedure must be regarded as
such. It is procedure, something designed to facilitate justice and further its
ends: not a penal enactment for punishment and penalties; not a thing designed
to trip people up. Too technical a construction of sections that leaves no room
for reasonable elasticity of inter9 pretation should therefore be guarded
against (provided always that justice is done to both sides) lest the very
means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind
the fact that our laws of procedure are grounded on a principle of natural
justice which requires that men should not be condemned unheard, that decisions
should not be reached behind their backs, that proceedings that affect their
lives and property should not continue in their absence and that they should
not be precluded from participating in them. Of course, there must be
exceptions and where they are clearly defined they must be given effect to. But
taken by and large, and subject to that proviso, our laws of procedure should
be construed, wherever that is reasonably possible, in the light of that
The existence of such a principle has been
doubted, and in any event was condemned as unworkable and impractical by
O'Sullivan, J. in Hariram v. Pribhdas(1). He regarded it as an indeterminate
term "liable to cause misconception" and his views were shared by
Wanchoo, C. J. and Bapna, J. in Rajasthan: Sewa Ram v. Misrimal(1). But that a
law of natural justice exists in the sense that a party must be heard in a
Court of law, or at any rate be afforded an opportunity to appear and defend
himself, unless there is express provision to the contrary, is, we think,
beyond dispute. See the observations of the Privy Council in Balakrighna Udayar
v. Vasudeva Ayyar(3), and especially in T. M. Barret v. African Products
Ltd.(1) where Lord Buckmaaster said "Do forms or procedure should ever be
permitted to exclude the presentation of a litigant's defence". Also Hari
Vishnu's case which we have just quoted.
In our opinion, Wallace, J. was right in
VenkataSubbiah v. Lakshminarassimham(5) in holding that "One cardinal
principle to be observed in trials by a Court obviously is that a party has a
right to (1) A.I.R 1945 Sind 98,102 (2) A.I.R. 1952 Raj. 12,14.
(3) A.I.R. 40 Mad. 793, 800 (4) A.I.R. 1928
P.C. 261, 262.
(5) A.I.R. 1925 Mad. 1274.
2 10 appear and plead his case on all
occasions when that cause comes on for hearing", and that "It follows
that a party should not be deprived of that right and in fact the Court has no
option to refuse that right, unless the Code of Civil Procedure deprives him of
Let us now examine that Code; and first, we
will turn to the body of the Code. Section 27 provides that "Where a suit
has been duly instituted, a summons may be issued to the defendant to appear
and answer the claim".
Section 30 gives the Court power to "(b)
issue summonses to persons whose attendance is required either to give evidence
or to produce documents or such other objects as aforesaid".
Then come the penalties for default. They are
set out in section 32 but they are confined to cases in which a summons has
been issued under section 30. There is no penalty for a refusal or an omission
to appear in response to a summons under section 27. It is true certain
consequences will follow if a defendant does not appear and, popularly
speaking, those consequences may be regarded as the penalty for nonappearance,
but they are not penalties in the true sense of the term. They are not
punishments which the Court is authorised to administer for disregard of its
The antithesis that section 32 draws between
section 27 and section 30 is that an omission to appear in response to a
summons under section 27 carries no penalty in the strict sense, while
disregard of a summons under section 30 may entail punishment. The spirit of
this distinction must be carried over to the First Schedule. We deprecate the
tendency of some Judges to think in terms of punishment and penalties properly
so called when they should instead be thinking of compensation and the
avoidance of injustice to both sides.
We turn next to the Rules in the First
Schedule. It is relevant to note that the Rules draw a distinction between the
first hearing and subsequent hearings, 11 and that the first hearing can be
either (a) for settlement of issues only., or (b) for final disposal of the
First, there is Order V. rule 1:
summons may be issued to the defendant to appear and answer the claim on a. day
to be therein specified".
This summons must state whether the hearing
is to be for settlement of issues only or for final hearing (rule 5). If it is
for final hearing, then (rule 8):
"it shall also direct the defendant to
produce, on the day fixed for his appearance, all witnesses upon whose evidence
he intends to rely in support of his case".
Then comes Order VIII, rule 1 which expressly
speaks of "the first hearing". Order IX follows and is headed
"Appearance of parties and consequence of non-appearance".
Now the word "consequence" as
opposed to the word "penalty" used in section 32 is significant. It
emphasises the antithesis to which we have already drawn attention. So also in
rule 12 the marginal note is "Consequence of nonattendance" and the
body of the rule states that the party who does not appear and cannot show
sufficient cause "shall be subject to all the provisions of the foregoing
rules applicable to plaintiffs and defendants, respectively, who do not appear".
The use of the word "penalty" is
Our attention was drawn to rule 6(2) and it
was argued that Order IX does contemplate the imposition of penalties. But we
do not read this portion of the rule in that light. All that the plaintiff has
to do here is to pay the costs occasioned by the postponement which in practice
usually means the cost of a fresh summons and the diet money and so forth for
such of the witnesses as are present; and these costs the plaintiff must pay
irrespective of the result.
Rule I of Order IX starts by saying" On
the day fixed in the summons for the defendant to appear and
answer................................................." 12 and the rest
of the rules in that Order are consequential on that. This is emphasised by the
use of the word "postponement" in rule 6 (1)(c), of
"adjournment" in rule 7 and of "adjournment" in rule 1.
Therefore, we reach the position that Order IX, rule 6 (1) (a), which is the
rule relied on, is confined to the first hearing of the suit and does not per
se apply to subsequent hearings: see Sahibzada Zeinulabdin Khan v. Sahibzada
Ahmed Raza Khan(1).
Now to analyse rule 6 and examine its bearing
on the first hearing. When the plaintiff appears and the defendant does not
appear when the suit is called on for hearing, if it is proved that the summons
was duly served"(a)....................................................
the Court may proceed ex parte".
The whole question is, what do these words
mean? Judicial opinion is sharply divided about this. On the one side is the
view propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimham(2) that
ex parte merely means in the absence of the other party, and on the other side
is the view of O'Sullivan, J., in Hariram v. Pribhdas(3) that it means that the
Court is at liberty to proceed without the defendant till the termination of
the proceedings unless the defendant shows good cause for his non-appearance.
The remaining decisions, and there are many of them, take one or the other of those
In our opinion, Wallace, J. and the other
Judges who adopt the same line of thought, are right. As we have already
observed, our laws of procedure are based on the principle that, as far as
possible, no proceeding in a Court of law should be conducted to the detriment
of a person in his absence. There are of course exceptions, and this is one of
them. When the defendant has been served and has been afforded an opportunity
of appearing, then, if he does not appear, the Court may proceed in his
absence. But, be it noted, the Court is not directed to make an ex (1) 5 I.A.
(2) A,I.R. 1925 Mad. 1274.
(3) A.I.R. 1945 Sind 98, 102.
13 parte order. Of course the fact that it is
proceeding ex parte will be recorded in the minutes of its proceedings but that
is merely a statement of the fact and is not an order made against the
defendant in the sense of an ex parte decree or other ex parte order which the
Court is authorised to make. All that rule 6 (1) (a) does is to remove a bar
and no more. It merely authorises the Court to do that which it could not have
done without this authority, namely to proceed in the absence of one of the
parties. The contrast in language between rules 7 and 13 emphasises this.
Now, as we have seen, the first hearing is
either for the settlement of issues or for final hearing. If it is only for the
settlement of issues, then the Court cannot pass an ex parte decree on that
date because of the proviso to Order XV, rule 3(1) which provides that that can
only. be done when "the parties or their pleaders are present and none of
On the other hand, if it is for final
hearing, an ex parte decree can be passed, and if it is passed, then Order IX,
rule 13 comes into play and before the decree is set aside the Court is
required to make an order to set it aside.
Contrast this with rule 7 which does not
require the setting aside of what is commonly, though erroneously, known as
"the ex parte order". No order is contemplated by the Code and
therefore no order to set aside the order is contemplated either. But a decree
is a command or order of the Court and so can only be set aside by another
order made and recorded with due formality.
Then comes rule 7 which provides that if at
an adjourned hearing the defendant appears and shows good cause for his
"previous non-appearance", he can be heard in answer to the suit
"as if he had appeared on the day fixed for his appearance".
This cannot be read to mean, as it has been
by some learned Judges, that he cannot be allowed to appear at all if he does
not show good cause. All it means is that he cannot be relegated to the
position he would have occupied if he had appeared, 14 We turn next to the
adjourned hearing. That is dealt with in Order XVII. Rule I (1) empowers the
Court to adjourn the hearing and whenever it does so it must fix a day
"for the further hearing of the suit", except that once the hearing
of the evidence has begun it must go on from day to day till all the witnesses
in attendance have been examined unless the Court considers, for reasons to be
recorded in writing, that a further adjournment is necessary. Then follows rule
2"Where., on any day to which the hearing of the suit is adjourned, the
parties or any of them fail to appear, the Court may proceed to dispose of the
suit in one of the modes directed in that behalf by Order IX or make such other
order as it thinks fit".
Now rule 2 only applies when one or both of
the parties do not appear on the day fixed far the adjourned hearing. In that
event, the Court is thrown back to Order IX with the additional power to make
"such order as it thinks fit".
When it goes back to Order IX it finds that
it is again empowered to proceed ex parte on the adjourned hearing in the same
way as it did, or could have done, if one or other of the parties had not
appeared at the first hearing, that is to say, the right to proceed ex parte is
a right which accrues from day to day because at each adjourned hearing the
Court is thrown back to Order IX, rule 6. It is not a mortgaging of the future
but only applies to the particular hearing at which a party was afforded the
chance to appear and did not avail himself of it. Therefore, 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.
But though he has the right to appear at an
adjourned hearing, he has no right to set back the hands of the clock.
Order IX, rule 7 makes that clear. Therefore,
unless he can show good cause, he must accept all that has gone before and be
content to proceed from the stage at which he comes in.
But what exactly does that import? To
determine that it will be necessary to hark back to the first hearing.
We have already seen that when a summons is
issued to the defendant it must state whether the hearing is for the settlement
of issues only or for the final disposal of the suit (Order V, rule 5). In
either event, Order VIII, rule I comes into play and if the defendant does not
present a written statement of his defence, the Court can insist that he shall;
and if, on being required to do so, he fails to comply"the Court may
pronounce judgment against him, or make such order in relation to the suit as
it thinks fit". (Order VIII, rule 10).
This invests the Court with the widest
possible discretion and enables it to see that justice is done to both sides;
and also to witnesses if they are present: a
matter on which we shall dwell later.
We have seen that if the defendant does not
appearat the first hearing, the Court can proceed exparte, which means that it
can proceed without a written statement; and Order IX, rule 7 makes it clear
that unless good cause is shown the defendant cannot be relegated to the
position that he would have occupied if he had appeared. That means that he
cannot put in a written statement unless he is allowed to do so, and if the
case is one in which the Court considers a written statement should have been
put in, the consequences entailed by Order VIII, rule 10 must be suffered. What
those consequences should be in a given case is for the Court, in the exercise
of its judicial discretion, to determine. No hard and fast rule can be laid
down. ID some cases an order awarding costs to the plaintiff would meet the
ends of justice: an adjournment can be granted or a written statement can be
considered oil the spot and issues framed. In other cases, the ends of justice
may call for more drastic action.
Now when we speak of the ends of justice, we
mean justice not only to the defendant and to the other side but also to
witnesses and others who may be inconvenienced. It is an unfortunate fact that
the convenience of the witness is ordinarily lost sight of in this class of case
and yet be is the one that deserves 16 the greatest consideration. As a rule,
he is not particularly interested in the dispute but he is vitally interested
in his own affairs which he is compelled to abandon because a Court orders him
to come to the assistance of one or other of the parties to a dispute. His own
business has to suffer. He may have to leave his family and his affairs for
days on end. He is usually out of pocket.
Often he is a poor man living in an out of
the way village and may have to trudge many weary miles on foot. And when he
gets there, there are no arrangements for him. He is not given accommodation;
and when he reaches the Court, in most places there is no room in which he can
wait. He has to loiter about in the verandahs or under -the trees, shivering in
the cold of winter and exposed to the heat of summer , wet and miserable in the
rains: and then, after wasting hours and sometimes days for his turn, he is
brusquely told that he must go back and come again another day. Justice strongly
demands that this unfortunate section of the general public compelled to
discharge public duties, usually at loss and inconvenience to themselves, should
not be ignored in the overall picture of what will best serve the ends of
justice and it may well be a sound exercise of discretion in a given case to
refuse an adjournment and permit the plaintiff to examine the witnesses present
and not allow the defendant to cross-examine them, still less to adduce his own
evidence. It all depends on the particular case. But broadly speaking, after
all the various factors have been taken into consideration and carefully
weighed, the endeavour should be to avoid snap decisions and to afford
litigants a real opportunity of fighting out their cases fairly and squarely.
Costs will be adequate compensation in many cases and in others the Court has
almost unlimited discretion about the terms it can impose provided always the
discretion is judicially exercised and is not arbitrary.
In the Code of 1859 there was a provision
(section 119) which said that" No appeal shall lie from a judgment passed exported
against a defendant who has not appeared".
17 The Privy Council held in Sahibzada
Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan(' ) that this only applied to a
defendant who had not appeared at all at any stage, therefore, if once an
appearance was entered, the right of appeal was not taken away. One. of the
grounds of their decision was that" 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".
The general rule, founded on principles of
natural justice, that proceedings in a Court of justice should not be conducted
behind the back of a party in the absence of an express provision to that
effect is no less compelling. But that apart. It would be anomalous to hold
that the efficacy of the so-called ex parte order expends itself in the first
Court and that thereafter a defendant can be allowed to appear in the appellate
Court and can be beard and can be permitted to urge in that Court the very
matters he is shut out from urging in the trial Court; and in the event that
the appellate Court considers a remand necessary he can be permitted to do the
very things he was precluded from doing in the first instance without wetting
the exparte order set aside under Order IX, rule 7.
Now this is not a case in which the defendant
with whom we are concerned did not appear at the first hearing. He did.
The first hearing was on 11-12-1952 at Kotah.
The appellant (the first defendant) appeared through counsel and filed a
written statement. Issues were framed and the case was adjourned till the 16th
March at Udaipur for the petitioners evidence alone from the 16th to the 21st
March. Therefore, Order IX, rules 6 and 7 do not apply in terms. But we have
been obliged to examine this order at length because of the differing views
taken in the various High Courts and because the contention is that Order XVII,
rule 2 throws one back to the position under Order IX, rules 6 and 7, and
there, according to one set of (1) 5 I.A. 233.
3 18 views, the position is that once an ex
parte "order" is "Passed" against a defendant he cannot take
further part in the proceedings unless he gets that 'order" set aside by
showing good cause under rule 7. But that is by no means the case.
If the defendant does not appear at the
adjourned hearing (irrespective of whether or not he appeared at the first
hearing) Order XVII, rule 2 applies and the Court is given the widest possible
discretion either "to dispose of the suit in one of the modes directed in
that behalf by Order IX or make such other order as it thinks fit".
The point is this. The Court has a discretion
which it must exercise. Its hands are not tied by the so called ex parte order;
and if it thinks they are tied by Order IX, rule 7 then it is not exercising
the discretion which the law says it should and, in a given case, interference
may be called for.
The learned Judges who constituted a Full
Bench of the Lucknow Chief Court (Tulsha Devi v. Sri Krishna(1) ) thought that
if the original ex parte order did not enure throughout all future hearings it
would be necessary to make a fresh ex parte order at each succeeding hearing.
But this proceeds on the mistaken assumption that an ex parte order is
required. The order sheet, or minutes of the proceedings, has to show which of
the parties were present and if a party is absent the Court records that fact
and then records whether it will proceed ex parte against him, that is to say,
proceed in his absence, or whether it will adjourn the hearing; and it must
necessarily record this fact at every subsequent bearing because it has to
record the presence and absence of the parties at each hearing. With all due
deference to the learned Judges who hold this view, we do not think this is a
grave or a sound objection.
A much weightier consideration is that the
plaintiff may be gravely prejudiced in a given case because, as ,the learned
Rajasthan Judges point out, and as O'Sullivan, J. thought, when a case proceeds
ex parte, (1) A.I.R. 1949 Oudh 59.
19 the plaintiff does not adduce as much
evidence as he would have if it had been contested. He contents himself with
leading just enough to establish a prima facie case.
Therefore, if he is suddenly confronted with
a contest after he has closed his case and the defendant then comes forward
with an army of witnesses he would be taken by surprise and gravely prejudiced.
That objection is, however, easily met by the wide discretion that is vested in
the Court. If it has reason to believe that the defendant has by his conduct
misled the plaintiff into doing what these learned Judges apprehend, then it
might be a sound exercise of discretion to shut out cross-examination and the
abduction of evidence on the defendant's part and to allow him only to argue at
the stage when arguments are heard. On the other hand, cases may occur when the
plaintiff is not and ought not to be, misled. If these considerations are to
weigh, then surely the sounder rule is to leave the Court with an unfettered
discretion so that it can take every circumstance into consideration and do
what seems best suited to meet the ends of justice in the case before it.
In the present case, we are satisfied that
the Tribunal did not exercise its discretion because it considered that it had
none and thought that until the ex parte order was set aside the defendant
could not appear either personally or through counsel. We agree with the
Tribunal, and with the High Court, that no good cause was shown and so the
defendant had no right to be relegated to the position that he would have
occupied if he had appeared on 17-3-1953, but that he had a right to appear
through counsel on 20-3-1953 and take part in the proceedings -from the stage
at which they had then reached, subject to such terms and conditions as the
Tribunal might think fit to impose, is we think, undoubted. Whether he should
have been allowed to cross examine the three witnesses who were examined after
the appearance of his counsel, or whether he should have been allowed to adduce
evidence, is a matter on which we express no opinion, for that has to depend on
whatever view the Tribunal in a sound exercise of judicial discretion will 20
choose to take of the circumstances of this particular case, but we can find no
justification for not at least allowing counsel to argue.
Now the Tribunal said on 23-3-1953"The
exact stage at which the case had reached before us on the 21st of March 1953
was that under the clear impression that respondent No. 1 had failed to appear
from the very first date of the final hearing when the ex parte order was
passed, the petitioner must have closed his case after offering as little
evidence as he thought was just necessary to get his petition disposed of
exparte. Therefore, to all the respondent No. 1 to step in now would certainly
handicap the petitioner and would amount to a bit of injustice which we can
neither contemplate nor con done".
But this assumes that the petitioner was
misled and closed his case "after offering as little evidence as he
thought was just necessary to get his petition disposed of ex parte". It
does not decide that that was in fact the case.
If the defendant's conduct really gave rise
to that impression and the plaintiff would have adduced more evidence than he
did, the order would be unexceptional but until that is found to be the fact a
mere assumption would not be a sound basis for the kind of discretion which the
Court must exercise in this class of case after carefully weighing all the
relevant circumstances. We, therefore, disagreeing with the High Court which
has upheld the Tribunal's order, quash the order of the Tribunal and direct it
to exercise the discretion vested in it by law along the lines we have
indicated. In doing so the Tribunal will consider whether the plaintiff was in
fact misled or could have been misled if he had acted with due diligence and
caution. It will take in-to consideration the fact that the defendant did enter
an appearance and did file a written statement and that issues were framed in
his presence; also that the case was fixed for the "Petitioner's"
evidence only and not for that of the appellant; and that the petitioner
examined all the witnesses he had present on the 17th and the 18th and did not
give up any of them; that he was given 21 an adjournment on 19-3-1953 for the
examination witnesses who did not come on that date and that the examined three
more on 20-3-1953 after the defendant had entered an appearance through counsel
an( claimed the right to plead;
also whether, when the appellant's only
protest was against the bearings a Udaipur on dates fixed for the petitioner's
evidence alone, it would be legitimate for a party acting with due caution and
diligence to assume that the other side had abandoned his right to adduce his
own evidence should the hearing for that be fixed at some other place or at
some other date in the same place.
The Tribunal will also consider and determine
whether it will be proper in the circumstances of this case to allow the
appellant to adduce his own evidence.
The Tribunal will now reconsider its orders
of the 20th, the 21st and the 23rd of March 1953 in the light of our observations
and will proceed accordingly.
The records will be sent to the Election
Commission with directions to that authority to reconstitute the Tribunal, if
necessary, and to direct it to proceed with this matter along the lines
There will be no order about costs.