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PETITIONER: ARJUN SINGH

       Vs.

RESPONDENT: MOHINDRA KUMAR & ORS.

DATE OF JUDGMENT: 13/12/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K.

CITATION:  1964 AIR  993            1964 SCR  (5) 946  CITATOR INFO :  R          1966 SC1899  (5)  RF         1973 SC 313  (9)  R          1979 SC1436  (5)

ACT: Code of Civil Procedure (Act V of 1908). ss. 11 and 151  and O.  IX,  rr,  3, 7 and 13-Principle  of  res  judicata  when applicable-"Good cause" and "sufficient cause" if different.

HEADNOTE: There  were  three suits in two of which the  appellant  was defendant and in the other the plaintiff.  One of the  three was  the main suit (in which appellant was a  defendant  and the  others were connected suits.  They were ordered  to  be consolidated for the purpose of hearing and a day was  fixed for pronouncing judgment.  The appellant did not appear  and ex   parte  orders  were  passed  against  him.   He   filed application  (purporting to be under Or.  IX , r. 7 Code  of Civil Procedure) for setting aside the ex parte orders which were  rejected.   Thereupon he  filed  revision  application before  the  High Court which  applications  were  rejected. Within a short time he applied to the trial court for taking evidence and proceeding with the case.  This application was rejected.   Thereafter  he filed again  another  application (under Or.  IX, r. 13. Code of Civil Procedure) for  setting aside the ex parte order alleging the same facts and reasons as before.  The, respondents raised the bar of res  judicata which  was accepted by the Court.  On the rejection  of  his application he appealed to the High Court.  The 947 High  Court  also  dismissed the appeal  on  the  ground  of resjudicata. The present appeal is by special leave  granted by  this Court.  The same plea was raised before this  Court and  the  contentions of the parties were  centered  on  the interpretation and application of Order IX, rr. 7, 9 and  13 of the Code of Civil Procedure, 1908. Held: (i) There is no material difference between the  facts to  be  established for satisfying the two  tests  of  "good cause" under Or. IX, r. 3 for non appearance and "sufficient cause" under Or. IX, r. 13. (ii) The  scope  of  the principle of res  judicata  is  not

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confined  to  what  is contained in s. 11  but  is  of  more general   application.  Res  judicata  could  be   as   much applicable  to  different  stages of the  same  suit  as  to findings on issues in different suits. Satyadhyan  Ghosal  v. Sm.  Deorajin Debi, [1960]  3  S.C.R. 590, referred to. (iii)  Where the principle of resjudicata is invoked in  the case of the different stages of proceedings in the same suit the  nature  of the proceedings, the scope  of  the  enquiry which  the  adjectival law provides for the  decision  being reached  as well as the specific provision made  on  matters touching  such  decisions  are some of  the  factors  to  be considered before the principle is held to be applicable. (iv)Or.  IX, r. 7 does not put an- end to the litigation nor does   it  involve  the  determination  of  any  issues   in controversy  in  the suit.  A decision or  direction  in  an interlocutory  proceeding  of the type provided for  by  Or. IX, r. 7 is not of the kind which can operate as resjudicata so  as to bar the hearing on the, merits of  an  application under Or.  IX, r. 13. Sankaralinga v. Ratnasabhapati, 21 Mad. 324 and Bhaoo  Patel v. Naroo, 10 C.L.R. 45, referred to. (v)For the operation of res judicata the Court dealing  with the  first matter must have had jurisdiction and  competency to  entertain and decide the issue.  It the entirety of  the "hearing"  of a suit has been completed and the court  being competent to pronounce judgment then and there, adjourns the suit  merely for the purpose of pronouncing judgment (as  it was  done in the present case) there is no  adjournment  for hearing and Or.  IX, r. 7 could have no application and  the matter  would  stand  at the stage of Or.  IX, r.  6  to  be followed up by passing of an ex parte decree making r. 13 of the  only  provision in Or.  IX applicable.   Therefore  the Civil  Judge  had  no jurisdiction in the  present  case  to entertain the first application of the appellant for setting aside  the ex parte order and hence the  second  application under  Or.  IX, r. 13 was not only competent but had  to  be heard on merits without reference to the findings  contained in the previous order. (vi)The  inherent  power of the Court  cannot  override  the express  or  implied provisions of law.  Order IX r.  7  and Or.IX 948 13  between them exhaust and provide for  every  contingency which  is  likely to happen in the trial vis-a-vis  the  non appearance of the defendant at the hearing of a suit.   This being  the position there is no scope or  justification  for the invocation of the inherent powers of the Court under  s. 151. (vii)     The Civil Judge was not competent to entertain the first  application of the appellant (purporting to be  under Or.  IX, r. 7) for setting aside the ex parte order and that consequently the reason given in the order passed would  not be  resjudicata  to bar the hearing of the  second  petition (under Or.  IX, r. 13) of the appellant to set aside the  ex parte order.

JUDGMENT: CIVIL  APPELLEATE  JURISDICTION : Civil Appeal  No.  768  of 1963.   Appeal by special leave from the judgment and order  dated May 6, 1963, of the Allahabad High Court in F.A.F.O. No. 116 of 1959.

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M.C. Setalvad, Y. Talwar and J.P. Goyal, for the appellant. G.S. Pathak, R.S. Agarwala, B. Dutta, J.B. Dadachanji,  O.C. Mathur and Ravinder Narain, for the respondents. December 13, 1963.  The Judgment of the Court was  delivered by AYYANGAR  J.-This is an appeal by special leave filed  by  a defendant whose application under O.    TX,  r.  13,   Civil Procedure Code to set aside an ex  parte    decree    passed against him has been dismissed as  barred by resjudicata. To appreciate the points arising in the appeal it would   be necessary to narrate the proceedings in three    litigations between  the parties.  The ex parte decree that  was  passed against  the defendant-who will hereafter be referred to  as the  appellant-and  which he sought to be set aside  in  the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur.  But long before this suit was filed, the two other  proceedings were already pending.  The first of  them was  a  Small  Cause suit by one Phula Kuer  who  sought  to recover from the appellant Rs. 750 on the basis that she and the appel- 949 lant  were  partners and by an arrangement between  them  he agreed  to  pay her Rs. 150 per month for her share  of  the profits  which he had failed to pay.  This was suit 1023  of 1951  on  the file of the Small Cause  Court,  Kanpur.   The appellant entered on his defence and denied the  partnership and  his liability to pay the sum claimed.  While this  suit was pending, the appellant in his turn filed suit No. 20  of 1953  against  Phula Kuer for fixing the fair  rent  of  the premises  in  which he was carrying on the  business,  which Phula  Kuer  alleged was a partnership  business,  it  being common ground that Phula Kuer was the owner thereof.   While these  two  suits were pending Phula Kuer died on  July  13, 1953  and  thereafter one Rup Chand Jain filed suit  134  of 1956  already referred to, Rup Chand Jain died  pending  the appeal in the High Court and is now represented by his heirs who  have  been  brought on record.   It  would  however  be convenient to refer to the respondents as the plaintiff. Suit  134 of 1956 which was filed on May 19,  1956  repeated the  allegation  that  Phula  Kuer  had  entered  into   the partnership with the appellant under which she was  entitled to  get  for  her share Rs. 150 per month.   This  share  of profits, it was alleged, had been paid to her up to  October 14, 1950 and that thereafter the appellant failed to pay the same.   The plaintiff claimed to be the next reversioner  of Phula Kuer and on that basis claimed that a sum of Rs. 4,200 was due to him.  Besides this, he alleged that the appellant had  been  using  the building belonging to  Phula  Kuer  in regard to which he was liable to pay rent which was  claimed at  Rs. 150 per mensem.  The plaintiff also claimed that  he was  entitled to evict the appellant from the premises.   In the  result, the reliefs claimed in the suit were  a  money- decree  for  Rs. 9,390 on account of the items we  have  set out,  and (2) eviction from the premises where the  business was  being carried on.  Having regard to the contentions  of the parties in the three suits, all of them were transferred by the District Judge, 950 to the court of the Second Civil Judge, Kanpur on August  4, 1956, and on August 23, 1956 the Civil Judge passed an order directing  that  the  suits 20 of 1953 and 134  of  1956  be consolidated for joint hearing, the evidence led in Suit 134 of 1956 being treated as evidence in the other suit as well. On  October  10,  1956  the  appellant  filed  his   written

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statement  to Suit 134 of 1956 in which he put  forward  the case  which he had already been asserting viz., (1)  absence of  any partnership relationship between himself  and  Phula Kuer,  and  (2) that he was in possession as  a  tenant  and could  not  be  evicted  because  the  requisite   statutory conditions to enable the plaintiff to ’claim eviction,  were not  satisfied.   Needless to add that  there  were  several other defences which he urged to which it is unnecessary  to refer.   Thereafter there were questions raised  as  regards the adequacy of the court-fee paid by the plaintiff in  Suit 134  of  1956, applications by the plaintiff  to  amend  the plaint  etc.   These took place during the year  1957.   The issues were settled on February 28, 1958.  We can pass  over what transpired in the early part of 1958.  Both the parties were attempting to effect a compromise and for that  purpose the  hearing  was  adjourned  but  the  compromise  was  not finalised,  and finally, on May 24 1958 a joint  application was made by the plaintiff     and  the  appellant  that  two months’ time  may be     granted  to  them to  arrive  at  a settlement  and that     the  trial which was fixed for  May 28,  1958  may be adjourned for that  purpose.   The  court, however,  refused this application for the reason  that  the suit for the fixation of rent was of the year 1953.  On  the 28th there was again another application for adjournment and the  court adjourned the trial by one day and fixed  it  for May  29, 1958, the order stating "If no compromise is  filed the case would be taken up for final hearing".  On 29th  the plaintiff  was present but the appellant was absent and  the latters’  counsel who was present reported that they had  no instructions  to  conduct  the case.   Thereupon  the  court passed an order in Suit 134 of 1956 in these terms: 951               "The  plaintiff  is  present.   Defendant   is               absent.   Counsel for the defendants  have  no               instructions.    Case   proceeds   ex   parte.               Plaintiff examined Mohindra Kumar and closed." The order concluded with the words ,Judgment reserved".   In the  suit  for the fixation of rent which was taken  up  for trial on the same date the order of the court ran:               "Plaintiff  is  absent.   Defendant  with  his               Counsel is present.  Counsel for the plaintiff               has no instructions.  Suit is dismissed as per               orders passed separately." It  is  only necessary to add that the third  suit--1023  of 1951-was on the same day also decreed ex parte. On  May 31, 1958 the appellant filed three  applications  in the three suits for setting aside the ex parte orders passed against  him.   The  application in Suit  134  of  1956  was treated as the primary one and in support of it an affidavit was filed in which the appellant stated that after the talks for  compromise  had reached a decisive stage and  when  the appellant   was  ’making  arrangements  to  implement   that decision he got an attack of heat-stroke and was, therefore, unable  to be present in Court when the case was  called  on the  29th-i.e.  the day fixed for bearing.   He,  therefore, prayed  that  the  order or direction to  proceed  ex  parte passed  against  him  in  the two  suits  in  which  he  was defendant  may be set aside and he be ’given an  opportunity to  contest the suits.  Needless to add that in suit  20  of 1953 which had been dismissed for default, the prayer was to set  aside  that dismissal.  Notices were  issued  on  these applications and the plaintiff filed a counter-affidavit  in which  he disputed the truth of the statement regarding  the appellant’s’ illness and prayed that the applications may be dismissed.   He  also suggested that if they  were:.  to  be

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ordered  it should be on certain terms.  We  should  mention even at this stage that though the application filed on  the 31st  did not specify the particular provision of law  under which the jurisdiction of the 952 Court  was invoked, the parties and the court  proceeded  on the basis that in relation to suits 1023 of 1951 and 134  of 1956 they were applications under O. IX, r.  7 of the  Civil Procedure  Code.   So  far  as  the  other   proceeding  was concerned-O.S. 20 of 1953-it was undoubtedly an  application for setting aside the dismissal of the plaintiff’s suit  for default  and  was  filed  under O. IX,  r.  9.  These  three applications  were disposed of by a common judgment  of  the Civil  Judge on August 23, 1958 and the learned Civil  Judge held  that the story of the illness of the  appellant  which had been put forward as affording sufficient reason for  not being present in court on May 29, 1958 was false.  For  this reason he refused to set aside the order dismissing the suit for default of suit 20 of 1953 in which judgment bad already been delivered.  In the other two suits 1023 of 1951 and 134 of  1956  he ordered the direction for  the  reservation  of judgments  to  stand  and  fixed August  25,  1958  for  the delivery of the judgments. The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application  in  suit  134  of  1956  alone  and  apparently obtained   a  stay  of  delivery  of  the  judgment.    This application  was disposed of by the High Court on  September 4, 1958 when the following order was passed:               "It  is conceded that no ex parte  decree  has               yet  been  passed.  The only order  passed  is               that  the case shall proceed ex parte  against               the  appellant.  In view of the fact  that  no               decree has yet been passed, the setting  aside               of  the  exparte  order  was  not   absolutely               necessary." After  referring  to the decision of this Court  in  Sangram Singh v. Election Tribunal(1) the learned Judge added:               "It follows that, even though the expert order               had  been passed, the applicant  could  appear               and take part in the case from the stage at               (1)   [1955] 2 S.C.R. p.l. 953               which the ex parts order had been passed.  The               only  thing  he  could not  claim  was  to  be               relegated  back to the old position as  if  he               had  not absented himself on the  date  fixed.               In   these   circumstances,   I   think,    no               interference  is called for with the order  of               the learned Civil Judge refusing to set  aside               the  ex parte order.  It will be open  to  the               applicant  to present himself on the  date  to               which  the  case  now  stands  adjourned   and               request  the learned Civil Judge to allow  him               to  participate in the proceedings  from  that               state.               There  is therefore no force in this  applica-               tion.  It is rejected." We  are making this extract from the order  for  emphasising the fact that it appears to have been the common case before the High Court that the application of the appellant in Suit 134  of  1956 was under O. TX, r. 7 of the  Civil  Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition. Within 4 days of this order of the High Court and  obviously

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acting  in pursuance of the direction of the  learned  Judge the appellant made an application to the Civil Judge drawing his attention to the observations we have quoted and prayed: "That  your  Honour be pleased to hear the  application  and take the evidence of the applicant." Applications of the same type were filed in the other  suit- 1023  of 1951-also.  He dismissed the applications  for  the reason that since the appellant’s prayer for being relegated to  the original position had been rejected by him and  also by the High Court in revision, it must be taken to have been finally  settled that the appellant could not lead  evidence because  the final hearing of the two suits was  over.   The only proceeding in which the appellant could participate was in  hearing  the  judgment and  therefore,  he  added,  "the applicant  is now entitled only to hear the  judgment".   On the same day-September 25, 954 1958-the  judgment  which  had  already  been  prepared  was delivered.  The judgment read:               "Both  the  suits are decreed  with  costs  ex               parte with interest at 6 % etc." To set aside this ex parte decree thus passed against him on September 25, 1958 the defendant filed an application  under O. IX, r. 13.  Obviously, the factual ground upon which  the relief  was  sought,  viz., that  there  was  reasonable  or sufficient  cause for the appellant’s absence from Court  on May 29, 1958 was the same as had been set out by him in  the application  which he had filed on May 31, 1958.   This  was opposed   by  the  plaintiff  who,  besides  repeating   the challenge  regarding the truth of the illness, raised  three legal  objections  of a preliminary nature.  Some  of  these have  been upheld by the Civil Judge and the High Court  but each one of them was sought to be supported before us by Mr. Pathak for the respondents.  They were: (1) that the finding recorded in the earlier application filed on May 31, 1958 in suit  134  of 1956 that there was not sufficient  cause  for non-appearance  on May 29, 1958 operated as res judicata  in the  petition filed under O. IX, r. 13 and was a bar to  the re-inquiry  of  the  same question on the  merits;  (2)  the finding  in the application to set aside the  dismissal  for default  of suit 20 of 1953 which had become final  operated was  a  bar  to  the  trial of  the  same  question  in  the application  under  O. IX, r. 13 in suit 134  of  1956;  and (3).that  the decree in suit 134 of 1956 was not in  reality an ex parte decree but was a decree on the merits within  O. XVII, r. 3, Civil Procedure Code and hence the remedy of the appellant  was only by way of an appeal against  the  decree and  he could not come in by way of an application under  O. IX,  r:  13.   The  learned Civil  Judge  upheld  the  first preliminary   ground   of  objection   and   dismissed   the application.   The appellant there-upon filed an  appeal  to the High Court and the learned Judges likewise held that any inquiry   into  the  question  whether  the  appellant   had sufficient  cause  for  nonappearance on May  29,  1958  was barred by res judicata 955 by reason of the decision of the same matter in the  earlier proceeding  under O. IX, r. 7. It is from this  judgment  of the  High Court that the present appeal has been brought  by special leave under Art. 136 of the Constitution. Before proceeding to deal with the arguments addressed to us by Mr. Setalvad-learned counsel for the appellant, it  would be  convenient  to mention a point,  not  seriously  pressed before  us, but which at earlier stages was thought to  have considerable significance for the decision of this  question

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viz., the difference between the words "good cause" for non- appearance  in  O. IX, r. 7 and "sufficient cause"  for  the same  purpose  in  O. IX, r. 13  as  pointing  to  different criteria  of "goodness" or "sufficiency" for  succeeding  in the  two proceedings, and as therefore furnishing  a  ground for the inapplicability of the rule of resjudicata.  As this ground  was not seriously mentioned before us, we  need  not examine  it in any detail, but we might observe that  we  do not  see  any material difference between the  facts  to  be established for satisfying the two tests of "good cause" and "  sufficient cause".  We are unable to conceive of a  "good cause" which is not "sufficient" as affording an explanation for  non-appearance, nor conversely of a "sufficient  cause" which  is  not a good one and we would add  that  either  of these  is  not different from "good  and  sufficient  cause" which is used in this context in other statutes.  If, on the other  hand, there is any difference between the two it  can only  be that the requirement of a "good cause" is  complied with  on a lesser degree of proof than that  of  "sufficient cause"  and  if so, this cannot help  the  appellant,  since assuming the applicability of the principle of res  judicata to the decisions in the two proceedings, if the court  finds in the first proceeding, the lighter burden not  discharged, it  must afortiori bar the consideration of the same  matter in  the later., where the standard of proof of  that  matter is, if anything, higher. As  it is the first. of the preliminary objections which  we have set out earlier that has formed the 956 basis  of  the decision against the appellant, both  by  the learned  Civil Judge as well as by the High Court, we  shall first take that up for consideration.  The courts below have approached this question in this form.  Order IX, r. 7 reads :               "7. Where the Court has adjourned the  hearing               of the suit ex parte, and the defendant, at or               before such hearing, appears and assigns  good               cause for his previous non-appearance, he may,               upon  such  terms as the Court directs  as  to               costs, or otherwise, be heard in answer to the               suit  as if he had appeared on the  day  fixed               for his appearance." If an application is made under this provision and the Court considers that there is not any good cause for the  previous non-appearance  and  proceeds  further  with  the  suit  and ultimately  it results in an ex parte decree, can the  Court in  dealing with the application to set aside the  ex  parte decree  under  O.IX , r. 13 reconsider the  question  as  to whether  the  defendant  had a  sufficient  cause  for  non- appearance  on  the day in regard to which  the  application under O. IX, r.     7 had been filed? That the question of fact which arose in the two proceedings was  identical would not be in doubt.  Of course, they  were not  in successive suits so as to make the provisions of  s. 11  of the Civil Procedure Code applicable in  terms.   That the  scope of the principle of res judicata is not  confined to  what  is  contained  in s. 11 but  is  of  more  general application  is  also not in dispute.  Again,  res  judicata could be as much applicable to different stages of the  same suit  as to findings on issues in different suits.  In  this connection  we  were  referred to what this  Court  said  in Satyadhyan Ghosal v. Sm.  Deorajin Debi(1) where Das  Gupta, J. speaking for the Court expressed himself thus:               "The principle of res judicata is based on the               need   of  giving  a  finality   to   judicial

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             decisions. (1)  [1960] 3 S.C.R. 590. 957               What  it says is that once a res is  judicata,               it shall not be adjudged again.  Primarily  it               applies as between past litigation and  future               litigation.    When  a  matter-whether  on   a               question  of fact or on a question of  law-has               been  decided between two parties in one  suit               or proceeding and the decision is final either               because no appeal was taken to a higher  court               or  because  the appeal was dismissed,  or  no               appeal lies, neither party will be allowed  in               a  future suit or proceeding between the  same               parties     to     canvass     the      matter               again.....................  The principle   of               res  judicata  applies  also  as  between  two               stages  in the same litigation to this  extent               that  a  court, whether the trial court  or  a               higher  court  having  at  an  earlier   stage               decided a matter in one way will not allow the               parties  to re-agitate the matter again  at  a               subsequent stage of the same proceedings." Mr.  Pathak laid great stress on this passage as  supporting him  in the two submissions that he made: (1) that an  issue of  fact or law decided even in an interlocutory  proceeding could operate as res judicata in a later proceeding, and (2) that  in order to attract the principle of res judicata  the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against. We agree that generally speaking these propositions are  not open  to objection.  If the court which rendered  the  first decision  was  competent  to entertain  the  suit  or  other proceeding, and had therefore competency to decide the issue or  matter,  the  circumstance  that it  is  a  tribunal  of exclusive jurisdiction or one from whose decision no  appeal lay  would  not by themselves negative the  finding  on  the issue  by  it  being  res  judicata  in  later  proceedings. Similarly,  as  stated already, though s. If  of  the  Civil Procedure  Code  clearly contemplates the existence  of  two suits  and the findings in the first being res  judicata  in the later’ suit, it is well-established that the principle 958 underlying it is equally applicable to the case of decisions rendered   at  successive  stages  of  the  same   suit   or proceeding.   But  where the principle of  res  judicata  is invoked  in the case of the different stages of  proceedings in  the same suit, the nature of the proceedings, the  scope of  the  enquiry which the adjectival law provides  for  the decision  being reached, as well as the specific  provisions made  on  matters  touching such decision are  some  of  the material  and relevant factors to be considered  before  the -principle is held applicable.  One aspect of this  question is  that which is dealt with in a provision. like s. 105  of the Civil Procedure Code which enacts:               "105.(1) Save as otherwise expressly provided,               no  appeal shall lie from any order made by  a               Court  in  the  exercise of  its  original  or               appellate jurisdiction; but, where a decree is               appealed   from,   any   error,   defect    or               irregularity  in  any  order,  affecting   the               decision  of the case, may be set forth  as  a               ground  of  objection  in  the  memorandum  of               appeal.               (2)   Notwithstanding  anything  contained  in

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             sub-section (1), where any party aggrieved  by               an order of remand made after the commencement               of  this Code from which an appeal  lies  does               not  appeal therefrom, he shall thereafter  be               precluded from disputing its correctness." It  was  this  which  was explained  by  Das  Gupta,  J.  in Satyadhayan Ghosal’s case(1) , already referred to:               "Does this, however, mean that be cause at  an               earlier  stage of the litigation a  court  has               decided an interlocutory matter in one way and               no  appeal  has  been taken  therefrom  or  no               appeal  did  lie, a higher court cannot  at  a               later  stage of the same  litigation  consider               the   matter   again?........  It   is   clear               therefore  that an interlocutory  order  which               had  not been appealed from either because  no               appeal  lay  or even though an appeal  lay  an               appeal was not taken could be challenged in an               appeal from the final decree or order." (1)[1960] 3 S.C.R. 590. 959 If  the  correctness  of the order of  the  Civil  Judge  in disposing  of the application filed by the appellant on  May 31, 1958 were questioned in an appeal against the decree  in the  suit, these principles and the observations would  have immediate  relevance.  But it is not as if  the  distinction here  drawn between the type of interlocutory  orders  which attain finality and those that do not, is of no  materiality in  considering whether a particular interlocutory order  is of  a  kind which would preclude the agitation of  the  same question before the same court in further stages of the same proceeding.  Dealing with the decisions of the Privy Council in Ram Kirpal Shukul v. Rup Kuari(1), Bani Ram Nanhu Mal(2), and Hook v.    Administrator-General of Bengal(3) which are the  leading  cases in which the principle of  res  judicata was  held  applicable  to  different  stages  of  the   same proceedings, Das Gupta J. observed(4) :               "It  will be noticed that in all  these  three               cases,  viz., Ram Kirpal Shukul’s  case,  Bani               Ram’s  case  and  Hook’s  case,  the  previous               decision  which was found to be  res  judicata               was  part  of a decree.  Therefore  though  in               form   the  later  proceeding  in  which   the               question  was sought to be raised again was  a               continuation  of the previous  proceeding,  it               was  in substance, an  independent  subsequent               proceeding.   The  decision of  a  dispute  as               regards  execution it is hardly  necessary  to               mention  was a decree under the Code of  Civil               Procedure and so in Ram Kirpal’s case and Bani               Ram’s  case,  such a decision being  a  decree               really  terminated the  previous  proceedings.               The  fact therefore that the Privy Council  in               Ram   Kirpal  Shukul’s  case   described   Mr.               Probyn’s order as an ’interlocutory  judgment’               does   not  justify  the   learned   counsel’s               contention  that  all kinds  of  interlocutory               judgments   not  appealed  from   become   res               judicata,  Interlocutory judgments which  have               the  force of a decree must  be  distinguished               from (1) 11 I.A. 37.      (2) 11 I.A. 181. (3)  48 I.A. 187.    (4) [1960] 3 S.C.R. 590 at pp. 602-03. 960               other interlocutory judgments which are a step

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             towards  the decision of the  dispute  between               parties by way of a decree or a final order." It is needless to point out that interlocutory orders are of various  kinds;  some  like orders of  stay,  injunction  or receiver are designed to preserve the status quo pending the litigation  and  to  ensure that the parties  might  not  be prejudiced by the normal delay which the proceedings  before the court usually take.  They do not, in that sense,  decide in any manner the merits of the controversy in issue in  the suit  and do not, of course, put an end to it even in  part. Such orders are certainly capable of being altered or varied by  subsequent  applications  for the  same  relief,  though normally only on proof of new facts or new situations  which subsequently emerge.  As they do not impinge upon the  legal rights  of  parties to the litigation the principle  of  res judicata  does  not  apply to the findings  on  which  these orders  are  based,  though if applications  were  made  for relief  on the same basis after the same has once been  dis- posed of the court would be justified in rejecting the  same as  an  abuse  of the process, of court.   There  are  other orders  which are also interlocutory, but would fall into  a different  category.  The difference from the ones just  now referred  to lies in the fact that they are not directed  to maintaining  the  status  quo or to  preserve  the  property pending  the final adjudication, but are designed to  ensure the  just, smooth, orderly and expeditious disposal  of  the suit.  They are interlocutory in the sense that they do  not decide  any matter in issue arising in the suit, nor put  an end to the litigation.  The case of an application under  O. IX.  r.  7  would be an illustration of this  type.   If  an application  made  under  the provisions  of  that  rule  is dismissed and an appeal were filed against the decree in the suit  in which such application were made, there can  be  no doubt  that  the  propriety  of  the  order  rejecting   the reopening of the proceeding and the refusal to relegate  the party  to an earlier stage might be canvassed in the  appeal and dealt 961 with by the appellate court.  In that sense, the refusal  of the  court to permit the defendant to "set the  clock  back" does not attain finality.  But what we are concerned with is slightly  different  and that is whether the same  Court  is finally  bound  by  that order at later  stages,  so  as  to preclude  its  being  reconsidered.  Even  if  the  rule  of resjudicata does not apply it would not follow that on every subsequent  day  on  which the  suit  stands  adjourned  for further  hearing  the petition could be repeated  and  fresh orders  sought  on  the  basis  of  identical  facts.    The principle that repeated applications based on the same facts and  seeking  the same reliefs might be  disallowed  by  the court does not however necessarily rest on the principle  of resjudicata.  Thus if an application for the adjournment  of a  suit is rejected, a subsequent application for  the  same purpose  even if based on the same facts, is not  barred  on the  application ’of any rule of res judicata, but would  be rejected  for  the  same  grounds  on  which  the   original application  was  refused.  The  principle  underlying   the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital.  If the principle of resjudicata is applicable to the decision on a particular issue of fact, even  if fresh facts were placed before the Court,  the  bar would continue to operate and preclude a fresh investigation of  the issue, whereas in the other case, on proof of  fresh facts, the court would be competent, nay,, would be bound to

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take those into account and make an order conformably to the facts freshly brought before the court. This  leads  us to the consideration of the  nature  of  the court’s  direction  under  O. IX, r. 7-the  nature  of  that interlocutory  proceeding-with a view to  ascertain  whether the  decision  of  the Court under  that  provision  decides anything finally so as to constitute the bar of res judicata when  dealing with an application under O. IX, r. 13,  Civil Procedure Code.  To sum up the relevant facts, it is  common ground that the suit-134 of 1956 had passed the stages up to r. 5 1/SCI/64-61 962 of O. IX. Order IX, r. 6 applies to a case where a plaintiff appears  and the defendant does not appear when the suit  is called on for hearing.  Order XI, rule 6 provides, to  quote the material part :               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 proceed exparte;........ This is the provision under which the Civil Judge  purported to act on the 29th of May.  And then comes O. IX, r. 7 which reads :               "Where the Court has adjourned the hearing  of               the  suit  ex parte and the defendant,  at  or               before such hearing, appears and assigns  good               cause for his previous non-appearance, he may,               upon  such  terms as the Court directs  as  to               costs or otherwise, be heard in answer to  the               suit  as if he had appeared on the  day  fixed               for his appearance. On  that very date the court took evidence of the  plaintiff and reserved judgment.  In other words, the hearing had been completed  and  the  only part of  the  case  that  remained thereafter was the pronouncing of the judgment. O.LXX, r.  1 provides for this contingency and it reads:-               "The  Court,  after the case has  been  heard,               shall pronounce judgment in open Court, either               at  once  or,  as soon thereafter  as  may  be               practicable, on some future day; and when  the               judgment  is to be pronounced on  some  future               day,  the  Court  shall fix  a  day  for  that               purpose, of which due notice shall be given to               the parties or their pleaders. Two  days after the hearing was completed and  judgment  was reserved  the  defendant appeared and made  the  application purporting to be under O. IX, r. 7. And it is the  dismissal of  this application that has been held to constitute a  bar to the hearing of the application under O. IX, r. 13 on  the merits. The scope of a proceeding under O. IX, r. 7 and its place in the scheme of the provisions of the Code 963 relating  to  the trial of suits was the subject  of  consi- deration in Sangram 5Singh v. Election Tribunal(1).  Dealing with  the  meaning of the words "The Court  may  proceed  ex parts" in O.’ IX, r. 6(1)(a) Bose J. speaking for the  Court said:               "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  parte

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             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." Dealing next with the scheme of the Code, the learned  Judge pointed  out  that  the  manner in  which  the  Court  could thereafter  proceed i.e., after r. 6(1)(a) was passed  would depend upon the purpose for which the suit stood  adjourned, and proceeded :               "If  it  is  for final hearing,  an  ex  parte               decree  can  be passed, and if it  is  passed,               then O. IX, r. 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  r. 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  there-               fore  no  order  to set  aside  the  order  is               contemplated either." (italics ours)               And  referring to the effect of the  rejection               of  application  made under O. XI,  r.  7,  he               added: (1)  [1955] 2 S.C.R. p. 1. 964               "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. r. 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." That  being  the effect of the  proceedings,.  the  question next.  arises what is the nature of the order if it  can  be called an order or the nature of the adjudication which  the court makes under O. IX, r. 7. In its essence it is directed to  ensure  the  orderly  conduct  of  the  proceedings   by penalising   improper  dilatoriness  calculated  merely   to prolong  the  litigation.   It does not put an  end  to  the litigation  nor  does it involve the  determination  of  any issue  in controversy in the suit.  Besides, it  is  obvious that the proceeding is of a very summary nature and this  is evident from the fact that as contrasted with O. IX, r. 9 or O.  IX, r. 13, no appeal is provided against action  of  the court  under O. IX, r. 7. "refusing to set back the  clock". It  is, therefore, manifest that the Code proceeds upon  the view  of not importing any finality to the determination  of any  issues of fact on which the court’s action  under  that provision  is  based.  In this connection reference  may  be made  to a decision of a Division Bench of the  Madras  High Court  in Sankaralinga v. Ratnasabhapati (1).  The  question arose  on  an  appeal to the High Court  by  the  defendants

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against whom an ex parte decree had been passed on March 30, 1895.  Previous thereto they had put in petitions  supported by  affidavits under s. 101 of the Civil Procedure  Code  of 1882 corresponding to O. IX, r. 7. to set aside "an ex parte order,"  accept their written statements, and  proceed  with the suit on the merits.  The ground alleged for the relief (1)  21 I.L.R. Mad. 324. 965 sought  was  that they were not duly  served  with  summons. This  application  was rejected by the  Court.   Thereafter, after  an  ex  parte decree was  passed,  they  again  filed another  application  under  s. 108  under  the  then  code, corresponding  to the present O. IX, r. 13.  The ground  put forward was again the same, namely that the summons was  not properly  served.  The District Judge having  dismissed  the application  under  s. 108 (O.  IX, r. 13),  the  defendants preferred  an  appeal to the High Court.  On behalf  of  the plaintiffs-respondents  the  contention was  raised  by  Mr. Bhashyam  Ayyangar-learned Counsel-that the  application  to set  aside the ex parte decree under s. 108 was  incompetent because  the same question has already been decided  against the  defendant when he filed the application under  s.  101. The  Court  composed of Subramania Iyer & Benson  JJ.  said, "the  contention at first sight may seem to  be  reasonable, but having regard to the very wide words ’in any case’  used in  s. 108 we are unable to hold that the defendant was  not entitled  to make an application under section  108."  There have  been other decisions in which a similar view has  been held and though the provisions of the Code corresponding  to O.  IX, r. 7 and O. IX, r. 13 have been in force for over  a century from 1859, there has not been a single case in which the  plea  of  res judicata such as has been  urged  in  the appeal  before  us has been upheld.  On the other  hand,  we might  point  out that an exactly similar objection  of  res judicata was expressly raised and repelled in Bhaoo Patel v. Naroo(1)  in a decision rendered in 1896 in  which  reliance was placed on a case reported in 8 Cal. 272. In  the  circumstances  we  consider  that  a  decision   or direction  in  an  interlocutory  proceeding  of  the   type provided  for by O. IX, r. 7, is not of the kind  which  can operate  as  resjudicata  so as to bar the  bearing  on  the merits of an application under O. IX, r. 13.  The latter  is a  specific  statutory remedy provided by the Code  for  the setting aside of ex parte decrees, and it (1)  10 C.P.L.R. 45. 966 is not without significance that under O. XLIII, r. 1 (d) an appeal lies not against orders setting aside a decree passed ex  parte but against orders rejecting such an  application, unmistakably pointing to the policy of "’the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties. So  far as the case before us is concerned the  order  under appeal  cannot  be  sustained even on  the  basis  that  the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact  is raised in a subsequent application to set aside  an ex  parte decree under O. IX, r. 13.  This is because it  is not  disputed that in order to operate as res judicata,  the court   dealing  with  the  first  matter  must   have   had jurisdiction  and  competency  to enertain  and  decide  the issue.   Adverting to the facts of the present appeal,  this would  primarily  turn upon the proper construction  of  the terms of O. IX, r.7. The opening words of that rule are,  as

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already seen, ’Where the Court has adjourned the hearing  of the  suit  ex  parts’.   Now,  what  do  these  words  mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned.  If the entirety of the  "hearing"  of a suit has been completed and  the  Court being  competent  to  pronounce  judgment  then  and  there, adjourns  the  suit merely for the  purpose  of  pronouncing judgment under O. XX, r. 1, there is clearly no  adjournment of  "the hearing" of the suit, for there is nothing more  to be  heard in the suit.  It was precisely this idea that  was expressed  by  the learned Civil fudge when he  stated  that having  regard to the stage which the suit had  reached  the only proceeding in which the appellant could participate was to  hear  the judgment pronounced and that on the  terms  of rules 6 & 7 he would permit him to do that.  If,  therefore, the  hearing was completed and the suit was  not  "adjourned for  hearing", O. IX, r.7 could have no application and  the matter would stand at the stage of O. IX, r.6 to be followed up by the passing 967 of  an  ex parte decree making r. 13 the only  provision  in order IX applicable.  If this were the correct position,  it would  automatically  follow that the  learned  Civil  Judge would  have  no jurisdiction to  entertain  the  application dated  May  31, 1958 purporting to be under O. IX,  r.7,  or pass  any  order thereon on the merits.  This  in  its  turn would  lead to the result that the application under O.  IX, r.  13  was not only competent but had to be  heard  on  the merits  without reference to the findings contained  in  the previous order. Mr. Pathak while not disputing that if the application filed on  May 31, 1958 was incompetent at the stage it was  filed, the  order  passed  by the Civil Judge  would  not  bar  the consideration on the merits of the later application to  set aside  the ex parte decree, sought to get over this  obvious situation  by  a  submission that even if O. IX,  r.  7  was inapplicable the court had an inherent jurisdiction saved by s.  151 C.P. Code to entertain the application  outside  the specific statutory provision and that it must be taken  that the appellant invoked that jurisdiction and that Court being thus  competent to grant or refuse the relief  followed  the latter alternative in the circumstances of the case and that consequently  the  proceedings  before the  Court  were  not incompetent  and  that the order passed on  the  application dated May 31, 1958 was therefore with jurisdiction. On  this submission, which we might mention has  been  urged for  the first time in this court, the first  question  that arises  is whether the Court has the  inherent  jurisdiction which learned counsel contends that it has.  For the purpose of  the  discussion of the question in the  context  of  the relevant provisions of the Code, it is unnecessary to embark on   any   detailed  or  exhaustive   examination   of   the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by s. 151 of the Civil Procedure Code.  It is sufficient if  we proceed  on  the accepted and admitted  limitations  to  the existence of such a jurisdiction. 968 It  is  common ground that the inherent power of  the  Court cannot override the express provisions of the law.  In other words, if there are specific provisions of the Code  dealing with a Particular  topic and they expressly or by  necessary implication exhaust the scope of the powers of the Court  or the  jurisdiction  that may be exercised in  relation  to  a matter the inherent power of the Court cannot be invoked  in

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order  to cut across the powers conferred by the Code.   The prohibition  contained in the Code need not be  express  but may  be implied or be implicit from the very nature  of  the provisions  that it makes for covering the contingencies  to which  it  relates, We shall confine our  attention  to  the topic  on  hand, namely applications by  defendants  to  set aside  ex  parte orders passed against them and  reopen  the proceedings  which  had  been conducted  in  their  absence. Order  TX,  r. 1 requires the parties to attend on  the  day fixed  for  their  appearance to answer  the  claim  of  the defendant.  Rule 2 deals with a case where the defendant  is absent but the Court from its own record is apprised of  the fact  that  the  summons has not been  duly  served  on  the defendant  in  order to acquaint him  with  the  proceedings before  the Court.  Rule 2 contains a proviso applicable  to cases  where  notwithstanding  the  absence  of  service  of summons,  the defendant appears.  Rule 3 deals with  a  case where  the plaintiff alongwith the defendant is absent  when the suit is called on and empowers the Court to dismiss  the suit.   Rule 5 deals with a case where the defendant is  not served  properly  and there is default on the  part  of  the plaintiff  in having this done.  Having thus  exhausted  the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed exparte where the defendant  is absent  even  after due service.  Rule  6  contemplates  two cases: (1) The day on which the defendant fails to appear is one  of which the defendant has no intimation that the  suit will  be taken up for final hearing for example,  where  the hearing is only the first hearing of the suit, and (2) where the  stage  of the first hearing is passed and  the  hearing which is fixed is 969 for  the  disposal  of the suit and  the  defendant  is  not present on such a day.  The effect of proceeding ex parte in the  two  sets  of  cases  would  obviously  mean  a   great difference in the result.  So far as the first type of cases is concerned it has to be adjourned for final disposal  and, as already seen, it would be open to the defendant to appear on  that  date and defend the suit.  In the second  type  of cases,  however,  one  of  two  things  might  happen.   The evidence of the plaintiff might be taken then and there  and judgment  might  be pronounced.  In that case O. IX,  r.  13 would come in.  The defendant can, besides filing an  appeal or   an  application  for  review,  have  recourse   to   an application  under  O. IX, r. 13 to set aside the  ex  parte decree.  The entirety of the evidence of the plaintiff might not  be concluded on the hearing day on which the  defendant is absent and something might remain so far as the trial  of the  suit  is concerned for which purpose there might  be  a hearing  on an adjourned date.  On the terms of O. IX, r.  7 if  the  defendant  appears  on  such  adjourned  date   and satisfies  the  Court  by showing good cause  for  his  non- appearance  on  the previous day or days he might  have  the earlier  proceedings recalled" set the clock back" and  have the suit heard in his presence.  On the other hand, he might fail  in showing good cause.  Even in such a case he is  not penalised  in the sense of being forbidden to take  part  in the further proceedings of the suit or whatever might  still remain of the trial, only he cannot claim to be relegated to the  position  that he occupied at the commencement  of  the trial.  Thus every contingency which is likely to happen  in the  trial vis-a-vis the non-appearance of the defendant  at the hearing ’of a suit has been provided for and O. IX, r. 7 and  O.  IX, r. 13 between them exhaust the whole  gamut  of situations that might arise during the course of the  trial.

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If, thus, provision has been made for every contingency,  it stands to reason that there is no scope for, the  invocation of  the  inherent  powers  of the Court  to  make  an  order necessary  for  the ends of justice.   Mr.  Pathak  however, strenuously contended 970 that  a  case  of the sort now on  hand  where  a  defendant appeared after the conclusion of the hearing but before  the pronouncing  of the judgment had not been provided for.   We consider that the suggestion ’that there is such a stage is, on  the  scheme  of the Code,  wholly  unrealistic.  ln  the present  context  when  once the hearing  starts,  the  Code contemplates  only two stages in the trial of the suit:  (1) Where  the hearing is adjourned or (2) where the hearing  is completed.  Where the hearing is completed the parties  have no further rights or privileges in the matter and it is only for  the convenience of the Court that O. XX, r. 1  permitts judgment to be delivered after an interval after the hearing is  complated.  It would, therefore, follow that  after  the stage  contemplated by O. IX, r. 7 is passed the next  stage is only the passing of a decree which on the terms of O. IX, r.  6 the Court is competent to pass.  And then follows  the remedy  of  the  party  to have that  decree  set  aside  by application  under  O.IX. r. 13.  There is  thus  no  hiatus between  the  two  stages of  reservation  of  judgment  and pronouncing the judgment so as to make it necessary for  the Court  to afford to the party the remedy of  getting  orders passed  on the lines of O. IX, r. 7. We are,  therefore,  of the  opinion  that  the Civil Judge  was  not  competent  to entertain  the application dated May 31, 1958 purporting  to be under O. IX, r. 7 and that consequently the reasons given in  the  order passed would not be res judicata to  bar  the hearing of the petition under O.   IX,  r. 13 filed  by  the appellant. There is one other aspect from which the same question could be viewed. O. IX, r. 7 prescribed the conditions subject  to which  alone  an application competent  under  the  opening, words  of  that  rule  ought to be  dealt  with.   Now,  the submission  of Mr. Pathak if accepted, would mean to  ignore the  opening  words and say that though  specific  power  is conferred  when a suit is adjourned for hearing,  the  Court has an inherent power even when (a) it is not adjourned  for that  purpose, and (b) and this is of some importance,  when the suit is not adjourned 971 at all, having regard to the terms of O. XX, r. 1. The  main part  of O. IX, r. 7 speaks "of good cause being  shown  for non-appearance"  on  a  previous day.   Now,  what  are  the criteria  to  be  applied by the  Court  when  the  supposed inherent jurisdiction of the Court is invoked.  Non-constant it  need not be identical with what is statutorily  provided in  r. 7. All this only shows that there is really no  scope for invoking the inherent powers of the Court.  Lastly, that power is to be exercised to secure the ends of justice.   If at the stage of r. 7 power is vested in the Court and  after the decree is passed O. IX, r. 13 becomes applicable and the party can avail himself of that remedy, it is very difficult to  appreciate the ends of justice which are supposed to  be served  by the Court being held to have the power which  the learned counsel says must inhere in it.  In this view it  is unnecessary  to  consider  whether to  sustain  the  present submission the respondent must establish that the court  was conscious  that  it  lacked  specific  statutory  power  and intended  to exercise an inherent power that it believed  it possessed  to make such orders as may be necessary  for  the

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ends of justice. It was next urged that even if the application under O.  IX, r.  7 in respect of suit 134 of 1956 was incompetent  having regard  to the stage which the hearing of that suit  reached when  that application was made, still the order  passed  in suit 20 of 1953 in the application made for the  restoration of  that suit under O. IX, r. 9 was competent and  that  the order passed on that application operated as resjudicata  to the maintainability of the application under O. IX, r. 13 in respect  of suit 134 of 1956.  We consider that there is  no substance in this submission.  The ground urged for applying the  rule  of  res judicata was that the Court  had,  at  an earlier  stage, ordered the joint trial of the three  suits- 1023  of  1951, 20 of 1953 and 134 of 1956 and that  as  the three suits were thus linked together, the application  made for the restoration of suit 20 of 1953 constituted a finding by  a competent Court that there was no good  or  sufficient cause for 972 the non-appearance of the appellant in court for any suit on May 29, 1958.  The suits were. no doubt, ordered to be tried jointly in the sense that the evidence recorded in one  suit was to be treated as evidence in the other suits also,  suit 134 of 1956 being treated as the main suit in which evidence was  recorded, but that affords no basis for the  contention that every application made in one suit for the relief which is  pertinent  only  to  that suit must  be  treated  as  an application  made in every other suit.  Thus, for  instance, in  the  present case if no application were  made  for  the restoration of suit 20 of 1953 which had been dismissed  for default  it  could hardly be contended that because  of  the application  made  in suit 134 of 1956 it  would  serve  the purpose of an application for the restoration of that  other suit  Similarly,  if an application had been  made  for  the restoration  of  suit 20 of 1953 and the  Court  found  that there  was sufficient cause for setting the dismissal  aside that  would by itself hardly be a ground for  setting  aside the ex    parte decree in suit 134 of 1956.  These  features are  sufficient  to demonstrate that the  circumstance  that the  suits  were being tried jointly has no bearing  on  the matter now in controversy and that so far as regards the  ex parte  orders in the three suits each had to  be  considered independently  and had to be disposed of also  independently notwithstanding  that the same grounds might  have  sufficed for  the relief prayed for in the independent  applications. There  is  another aspect from which this  matter  could  be viewed.  The point at issue in the application under O.  IX, r. 9 filed to set aside the dismissal for default in suit 20 of  1953 was whether the plaintiff had sufficient cause  for his non-appearance "when the suit was called on for hearing" (vide  O.  IX, r. 9).  ’The suit called on for  hearing’  in that rule obviously refers to suit 20 of 1953.  A  decision, therefore,  that there was no sufficient cause for the  non- appearance of the plaintiff in that suit would not be  eadem question  with the matter which arose for decision when  the application  under O. IX, r. 7 was made in suit 134 of  1956 notwithstanding that the facts upon which 973 that  issue  depended was similar  and  possibly  identical. This  is  a further reason why we are unable to  accept  the submission of learned counsel. The last of the points that was urged by Mr. Pathak was that the decree that was actually passed in suit 134 of 1956  was not in reality an ex parte decree but one on the merits.  It was urged that the proceeding on May 29, 1958 satisfied  the

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conditions of O. XVII, r. 3 and not O. XVII, r. 2. There are several  reasons  why this submission  is  entirely  without substance.  In the first place, during the entire proceeding right up to the hearing of the present application which was made  under  O.  IX, r. 13 the Court as  well  as  both  the parties proceeded on the basis that the decree was passed ex parte.   The order sheet on May 29, 1958 we  have  extracted earlier  contained  a direction by the Court that  the  case will  proceed ex parte for the reason that counsel  for  the defendant reported no instructions.  And it must be  noticed that  by  that  date  the  entire  hearing  was  over.   The application that was made to set aside this order to proceed ex  parte was filed on the basis that the  previous  hearing was ex parte and was contested by the respondent on the same basis.  The order of the High Court in revision on September 4,  1958 proceeds on the same basis.  When finally  judgment was  pronounced  by the Civil Judge in suit 134 of  1956  it expressly stated that it was a decree ex parte.  In the face of these circumstances there should be overwhelming evidence of  the proceedings not being ex parte if the respondent  is to  succeed in his present plea.  In order that  the  decree passed  was one under O. XVII, r. 3 which is the  submission of  Mr.  Pathak  the  opening words of  that  rule  must  be satisfied.  That rule reads:               "Where  any party to a suit to whom  time  has               been granted falls to produce his evidence, or               to  cause the attendance of his witnesses,  or               to  perform  any other act  necessary  to  the               further  progress of the suit, for which  time               has    been    allowed,   the    Court    may,               notwithstanding   such  default,  proceed   to               decide the suit forthwith." 974 In regard to this the Civil Judge stated:               "The  ground on which this objection is  based               is that 29.5.58 was the date adjourned at  the               instance of the defendant-applicant.  I do not               think,  that  this ground has any  force.   It               appears  from the record that on  28.5.58  the               cases  were  adjourned to 29.5.58 on  a  joint               application of the parties to the effect  that               a  compromise  would be filed.   It  was  not,               therefore,   an  adjournment  sought  by   the               defendant  alone; moreover,  that  application               was made by him in his own suit No. 20 of 1953               and the other two suits had also naturally  to               be  adjourned  as all the three of  them  were               consolidated.   The adjournment of  those  two               suits, therefore, cannot be said to be at  the               instance of the defendant." Learned  counsel  was unable to point any Raw in  the  facts here stated.  It would, therefore, follow that the terms  of O. XVII, r. 3 were not attracted at all and that suit 134 of 1956  was decreed not on merits but really ex parte  as  had been  expressly  stated by the learned Civil Judge  when  he passed that decree. In  the  result, the appeal is allowed and  the  application filed by the appellant under O. IX, r. 13 for setting  aside the  ex parte decree passed in suit 134 of 1956 is  remanded to the trial Judge for disposal on the merits in  accordance with  law.   The  appellant will be entitled  to  his  costs throughout.   The  cost incurred after this remand  will  be provided for by the Courts below. Appeal allowed. 975

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