Judgement

ORDER :- This application in revision by the defendant is directed against an order dated 6th March, 1980, refusing to set aside an ex parte order passed on 21-12-1979 and granting permission to the petitioner to file his written statement.

2. The first hearing of Special Suit No. 166/79 was fixed for 7-12-1979. On that day the plaintiff through his advocate and the defendant in person were present. At the request of the defendant the case was fixed for written statement on 21-12-1979 at 1.30 p.m. On that day the defendant being found absent the Court passed an order to proceed with the suit ex parte and adjourned the case to 10-1-1980. On the aforesaid date a petition was presented for setting aside the ex parte Order, dated 21-12-1979 and to allow the defendant to submit his written statement. The aforesaid petition was signed by Mr. Aristeu Furtado. In the petition it was stated that Advocate Santosh Timblo who represented the defendant on 7-12-1979 inadvertently noted the date as 22-12-1979. On 22nd the petitioner was requested by the said advocate through Timblo to file the written statement. On inquiry it was learnt that the Judge was then working at Ponda Court and that all the cases fixed for 22nd were postponed to be taken up on 4-1-1980. On 4-1-1980 on inquiry it was learnt that the case was actually fixed on 21-12-1979 and as the petitioner was not represented the ex parte order was passed. On account of wrong noting of the date the written statement could not be filed on the date fixed. Irreparable damage and loss would be caused to the petitioner if he was not allowed to file his written statement which was actually prepared and got verified on 18-12-1979.

3. In the counter filed in opposition to the above petition, it was stated that the advocate (evidently meaning Mr. Santosh Timblo) who was appearing for the defendant took correctly the date of the hearing as some other dates were not convenient to him and therefore 21-12-1979 which was convenient to him was the date which was given by the Court to file the written statement. The learned trial Court found that there was no reference to the presence of advocate Mr. Santosh Timblo in the Roznama and no vakalatnama had also been filed by him. The only vakalatnama filed was dated 10-1-1980 and that too in favour of some other lawyer. The case was adjourned at the request of the defendant. The question of Mr.Santosh Timblo having noted wrongly the date did not serve the since purpose the defendant being present in person asked for an adjournment to file his written statement and thus he was informed of the said date. Assuming that Mr. Timblo appeared for the defendant on 7-12-1979, his presence was of no consequence because he was not representing the defendant on that date. No materials were placed how the defendant came to know that the case was fixed on 4-1-1980. Thus having come to the conclusion that the defendant had been negligent and not able to make out a case for setting aside the ex parte order, passed the impugned order.

4. Mr. DCosta, learned advocate for the petitioner, has raised two contentions : First, the learned lower Court should have accepted that the non-appearance of the defendant on 21-12-1979 was on account of a bona fide mistake on the part of his lawyer, Shri Timblo in taking down the date of the case; and secondly, assuming that the petitioner failed to make out a case for setting aside the ex parte order, dated 21-12-1979, the Court should have exercised its discretion permitting the petitioner to file his written statement which in fact had been filed along with the petition dated 10-1-1980.

5. Whether Shri Timblo had filed power for the petitioner or not (which was admittedly not filed), the fact remains that he was present in Court on 7-11-1979 when the case was adjourned to 21-12-1979 (vide paragraph two of the affidavit-counter filed by the respondent in opposition to the application, D/- 10-1-1980 filed by the petitioner) to which reference has been made in the earlier paragraph of this order. So what was required of the petitioner to establish before the trial Court was that Shri Timblo noted the date in a wrong manner as a result of which he could not be present on 21-12-1979. Neither Shri Timblo was examined nor an affidavit was filed by him deposing to the above fact. Even the petitioner himself did not choose to pledge his oath in support of that fact. So except a bare

allegation contained in the petition of 10-1-1980, there is nothing on record to show that Shri Timblo took the date as 22-12-1979. This is one aspect. There is also no evidence that on 22-12-1979 as the Court was not sitting on that date, the case was postponed to 4-1-1980 and on 4th January it was further learnt that the case fixed on 21-12-1979 was taken up and the petitioner was set ex parte. In the circumstances there was no escape from the conclusion that the petitioner failed to explain that his absence on 21-12-1979 was due to the mistake in taking down the date by the advocate Shri Timblo who was present in Court. Thus there is no infirmity in the conclusion reached by the trial Court that the petitioner failed to assign good and sufficient reasons for explaining his absence on 21-12-1979. The first contention is accordingly disposed of.

6. Coming to the second contention, heavy reliance has been placed in the case of Binda Prasad v. United Bank of India (AIR 1961 Pat 152). As I have understood the decision it is not applicable and cannot therefore come to the rescue of the petitioner. The aforesaid decision arose out of a mortgage suit filed against three defendants. The first two defendants had filed their written statements while the third defendant did not appear. From the decision it is not known whether he had been set ex parte by an order as it has been done in this case. Issues were settled and some special witnesses had also been examined by the plaintiff. Two and a half years after the settlement of issues the defendant No.3 filed a written statement and two days thereafter filed an application showing cause for his non-appearance and for consequential delay in filing the written statement. The Court rejected the written statement without considering the application filed by the defendant No.3 subsequently. The Court held: "The Court below had acted unreasonably and had ignored relevant facts and adopted unjudicial approach and as such, it is the duty of the High Court, although sitting in revision, to interfere with the trial Courts exercise of discretion in this particular case. It was not a proper exercise of its discretion by the Court below, to reject the written statement and (hereby to shut out the defence of the petitioner simply because he filed his written defence very late after the settlement of the issues". So on facts the case under reference is distinguishable. The Court in the course of examination has spoken about the meaning of the expression first hearing and effect of failure on the part of the defendant in filing written statement on the date fixed for

settlement of issues. The following observation of the Court may be reproduced (at page 154) :-

"A party to a suit, as such, is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint. If the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceed without a written statement; and, Order 9, 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 Rule 10, Order 8, 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. In 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 on the spot and issues framed. In other cases, the ends of justice may call for more drastic action".

In making the above observation reliance has been put in "Sangram Singh v. Election Tribunal, Kotah" (AIR 1955 SC 425). The following are the relevant observations made by the Supreme Court (at p. 431) :-

"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 the Court is not directed to make an ex parte order. Of course the fact that it is proceedings 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 R.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 Rule 7 and Rule 13 emphasise this."

"Rule 7 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 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 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 O.8, R.10 must be suffered. What those consequences should be to a given case is for the Court, in the exercise of its judicial discretion, to determine to meet the ends of justice. 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.

"If the defendant does not appear at the adjourned hearing (irrespective of whether or not he appeared at the first hearing) O.17, R.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 O.9 or make such other order as it thinks fit. 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 O.9, R.7 then it is not exercising the discretion which the law says it should and, in a given case interference may be called for."

I find nothing in support of the proposition advanced before me that even if the defendant fails to assign good and sufficient reasons why he could not file the written statement within the time allowed by the Court, the Court can still exercise its discretion and allow him to file the written statement. What is to be done is clearly stated by the Supreme Court and not a word could be added today by anybody.

7. In the instant case the defendants failed to file the written statement and the grounds which led to their inability to file the written statement were put forward before the Court. The Court considered and found that they are not tenable. I find that the decision of the Judicial Commissioners Court is perfectly justified and the decision does not suffer from any infirmity whatsoever. The Court has not debarred the defendants from proceeding with the case. In the light of the decision of the Supreme Court, the defendants could not have been also prevented from participating in the trial despite the fact that their written statement has not been accepted. I do not think the Court would also prevent the defendants from participating in the trial without written statement. If of course such a contingency happens it is open to the defendants to move the higher Courts for redress according to law.

8. In the view that I have taken, I find no merit in the contentions urged before me. Consequently I would dismiss this Revision Application with costs as admissible under the rules.

Revision dismissed.