Distinction between ex-parte judgment and judgment of merits.

Judgment.-This is a petition to revise the order of the District Judge, Krishna at Masulipatam, dated 21st November, 1949, in C.M.A.No. 26 of 1949 restoring C.M.P.No. 383 of 1949 a petition to set aside the ex parte decree in O.S.No. 164 of 1946 a suit involving some Rs. 4,000 on the file of the Sub-Judge, Vijayawada. The Additional Subordinate Judge, Mr. Narayanamurthi, decreed the suit on 10th December 1948, and he considered that he had decided the suit on merits on the evidence available. The civil miscellaneous petition was filed on 27th December, 1948 and was dismissed by the Additional Sub-Judge on 9th April, 1949, on the ground that an application under Order 9, rule 13, Civil Procedure Code, would not lie as it was not an ex parte decree. The District Judge held that Order 9, rule 13 Civil Procedure Code, would apply to the decree in the facts of the case and remanded the civil miscellaneous petition for disposal on merits directing the costs in the civil miscellaneous appeal to abide the result in the lower Court of the remanded civil miscellaneous petition.

The facts are rather interesting. The defendant, Yellayya Chetti, was present with his vakilin the Sub-Court on 9th December, 1948, when the suit plaintiff’s witnesses in the suit were examined and cross-examined. He took an adjournment for the next day for producing his defence witnesses and examining them. But on 10th December, 1948, to which date the suit stood posted for examining his witnesses at his own request, he was absent. He sent a telegram to his vakil stating that he and his witnesses were all ill, and asking him to take an adjournment from Court that day so that he might attend Court with his witnesses on the adjourned date and examine them. The Sub-Judge naturally refused an adjournment as the defendant had taken an adjournment for him to that date for producing and examining his witnesses and had then sent a mere telegram like this without any medical certificate. The learned counsel for the defendant found himself, after the refusal of the adjournment, at a loose end, with no witnesses to examine and no client to instruct him. His client had only wired to him to apply for an adjournment and had not authorised him to go on with the suit. So he reported “no instructions,” though the learned Subordinate Judge in his order set aside by the learned District Judge, omitted to note it and noted the name of the vakil in the judgment passed that day in that suit as if he had taken part in the trial that day. This matter becomes very relevant for considering whether the judgment delivered that day by the learned Subordinate Judge was an ex parte judgment or a judgment on merits. Mr. Dikshitulu, for the petitioner in this civil revision petition, fairly conceded that it would be an ex parte judgment if there had been a report of “no instructions,” and not taking part in the trial that day by the defendant’s vakil. That will be so in view of the decisions in Ram Adhin v. Ram Bharose1 and Madan Gopal v. Budhu2. Mr. Dikshitulu, however, urged that the vakil’s endorsement of the “no instructions” was not recited in the Subordinate Judge’s order dated 9th April, 1949, in the civil miscellaneous petition, and that the District Judge, though he referred to it in paragraph 4 of his judgment, did not hold further that the vakil had only instructions to apply for an adjournment and that he had not taken any further part in the trial that day. The learned District Judge has said:

“But it is seen from the records that on that day he had filed a memo. representing ‘no instructions’.”

I am satisfied that the defendant’s vakil took no part in the trial that day, and that his name was wrongly noted in the judgment. It is clear to me that when a vakil is asked by his client by wire, merely to take an adjournment, and he applies for an adjournment and it is refused and he reports “no instructions” on the adjournment being refused, if the Court proceeds to deliver judgment, it c

Click Here to Read the rest of this document