Report No. 54

Recommendation

9.11. We, therefore, recommend that Order 9, rule 6, clause (a) should be revised as follows:-

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) if it is proved that the summons was duly served, the court may make an order that the suit be heard1 ex parte; and may, if it thinks fit, give a judgment on the basis that the allegations on fact made in the pleadings are true;

[Rest as in the present rule].

(b) Order 9, rule 7,should be replaced by the following rule:-

"7. Where the Court has adjourned the hearing of the suit after making an order that it be heard ex parte and-

(a) the defendant appears and assigns good cause for his previous non-appearance, the Court may, upon such terms as it directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance.

(b) if the defendant appears but does not assign good cause for his previous non-appearance as aforesaid, the Court shall upon such terms as to costs or otherwise as the court directs, permit the defendant to take part in the trial of the suit from the stage at which he appears; but the proceedings already taken shall not be re-opened, and, in particular, where the defendant had failed to file a written statement, before he appears, lie shall not be allowed to do so after his appearance, and the provisions of Order 8, rule 5 and Order 8, rule 10, shall apply in relation to his failure to file it, notwithstanding the permission granted under this clause."

1. Compare Order 9, rule 7.

Order 9, rule 13 and "duly served"

9.12. Under Order 9, rule 13, if the court is satisfied either that the summons has not been served, or that the defendant was prevented by sufficient cause from appearing, etc., the ex parte decree should be set aside. The two branches of the rule are distinctive, and the defendant, whatever his position may be in respect of one branch, is entitled to benefit of the other branch, if he satisfies the court that he has made good his contention in respect of the other branch.

9.13. In the earlier Report1, several points were considered with reference to this rule, and amendments suggested on one point,-the broad object being to ensure that a decree shall not be set aside merely on the ground of irregularity in service, if the defendant had knowledge of the decree. After consideration of the points discussed in the earlier Report, we have reached the same conclusion.

1. 27th Report, note on Order 9, rule 13 and "duly served".

Order 9, rule 13 and Order 41, rule 11

9.14. Order 9, rule 13 empowers a court to set aside an ex parte decree. Whether an application for setting aside an ex parte decree can be entertained by the trial court, after an appeal against the ex parte decree has been dismissed summarily by the appellate court, is a matter on which there is difference of opinion.

9.15. The Bombay High Court1, after stating that the majority of the High Courts2 were of the view that as the decree of the trial court merges with the decree of dismissal of appeal, the trial court can have no jurisdiction to deal with the decree, expressed its agreement with the majority view.

1. Kantilala v. Chiba Bava, AIR 1967 Born 310 (reviews cases).

2. e.g. (a) Dhonai v. Tarakunath, 12 Cal LJ 531.

(b) Kalainuddin v. Ksakakuddin, AIR 1924 Cal 830.

(c) Alliamma v. Ouseph, 1954 Ker L Times 322.

(d) Gauri Shankar v. Jagat Narain, AIR 1934 All 134.

9.16. It was held that an appeal was always treated as a re-hearing of the suit, and it makes no difference whether the appeal had been dismissed under Order 41, rule 11, or disposed of after issuing notice to the respondent.

9.17. The court, after referring to a Supreme Court case cited before it, said1 that that case did not lay down that the decree of the trial court does not merge in the decree of the appellate court even for the purposes of review of the judgment of the trial court.

1. State of Uttar Pradesh v. Muhammad Noor, 1959 SCR 595.

9.18. A contrary view has been taken by some High Courts1. Some of the decisions make a distinction between cases where the applicant was a party to the appeal and other cases.

1. (a) Venkatesubbaram (in re:), AIR 1944 Mad 576 (Kuppuswami Ayyar J.).

(b) Ram Rakhan (in re:), AIR 1945 All 352.

9.19. To settle the conflict of decisions on the subject, an amendment is desirable. The Bombay view is, in our opinion, logical, and should be adopted.

Recommendation

9.20. We recommend, therefore, that the following Explanation should be added to Order 9, rule 13

"Explanation.-Where there has been an appeal against the decree passed in the absence of the defendant, and the appeal has been disposed of, no application under this rule shall be in respect of that decree."

Order 9 and execution proceedings

9.21. The question how far Order 9 applies to execution proceedings is not free from doubt1. The general trend of opinion is that Order 9, rule 9 cannot be extended to execution cases with the help of section 141, and that section 151 can be and should be invoked in execution cases in appropriate cases. We are, however, dealing with the question of appearance at hearings in execution, by specific provisions2.

1. See, for example, Nemi Chand v. limed Mal, AIR 1962 Raj 107.

2. See discussion as to Order 21, rules 104-105 (New).