Summary
The Court restored the setting aside of an ex parte money decree. The explanation to Order XVII Rule 2 could not deem the absent defendants present merely because the plaintiff had led evidence: it applies to the absent party whose own evidence has substantially been recorded. The suit was directed to proceed on its merits, with part of the appellant’s deposit returned.
Issues
- Whether the explanation to Order XVII Rule 2 barred the defendants’ application under Order IX Rule 13.
- What deposit should remain as a condition while the suit proceeded afresh.
Provisions considered
- Order XVII Rule 2 and explanation, Code of Civil Procedure, 1908The deeming discretion relates to the same absent party whose evidence or substantial evidence has been recorded. It did not apply against defendants who had not begun their evidence. (¶¶ 14, 17, 18, 19, 20)
- Order IX Rules 6 and 13, Code of Civil Procedure, 1908The actual procedure produced an ex parte decree susceptible to a Rule 13 application. Appropriate terms could secure the claim while restoring a merits hearing. (¶¶ 15, 16, 18, 21, 22, 23)
Held
- The phrases referring to any party and such party in the explanation to Order XVII Rule 2 concern the same party. Evidence led by the plaintiff could not support deemed presence of the absent defendants, whose evidence had not started and whose counsel had not cross-examined the plaintiff’s witnesses. (¶¶ 19, 20)
- The trial court had expressly proceeded ex parte after counsel withdrew and the defendants remained absent. Its decree therefore fell within Order IX Rule 13; the High Court erred in treating the explanation as defeating maintainability of that application. (¶¶ 14, 15, 16, 17, 18, 20)
- In the ordinary course, the defendants should have been notified to engage new counsel after withdrawal of the vakalatnama. The trial court’s later order restoring a hearing on merits advanced justice and should not have been displaced on the High Court’s erroneous premise. (¶¶ 21, 22)
- A money-decree restoration order may impose a deposit condition, but requiring one director to retain a deposit of half the entire suit claim was excessive here. Twenty per cent was to remain invested, while thirty per cent was to be returned with the respective accrued interest. (¶ 23)
Result
Appeal allowed; High Court order set aside and suit to be decided on merits after due opportunity. Of the 50% claim deposit, 20% plus accrued interest to remain in automatically renewable fixed deposit; 30% plus interest to be returned within four weeks of filing this order with a refund application before the trial court. No costs.