22 March 1955
Supreme Court


Case number: Appeal (civil) 214 of 1954






DATE OF JUDGMENT: 22/03/1955


CITATION:  1955 AIR  425            1955 SCR  (2)   1

ACT: Representation  of the People Act (XLIII) of  1951,  section 105  Effect  of-Finality  and conclusiveness  of  orders  of Election        Tribunals       -Article       136        of Constitution--Jurisdiction of Supreme Court-Jurisdiction and powers  of High Courts under Article 226 of  the  Constitut- tion-Whether   in  any  way  affected-Writ  of   Certiorari- Principles governing grant of-Laws of procedure-Grounded  on natural  justice-Designed to promote  justice-Representation of  the  People Act of 1951, subsection (2) of  section  90- Procedure  for  trial of Election  petitions-Code  of  Civil Procedure, 1908, sections 27, 30 and 32-Distinction  between ’Penalty"  for  non-appearance of parties to suit  and  con- sequences   flowing  from  non-appearance  in  response   to summons-Code of Civil Procedure, 1908, Order 5, rules I  and 5  and  Order  8, rules I and 14, Order  9,  rules  6(1)(a)- 2,7,12  and 13-Order 15, rule 3Order 17, rules 1(1)  and  2- Trial   of  suits-First  hearing  and   adjourned   hearing- Distinction-Consequences of non-appearance-Ex parte  hearing and  ex  parte  order-Principles  governing  discretion   of Courts-Adjournment of hearing-Convenience of witnesses.

HEADNOTE: Notwithstanding   the  provision  in  section  105  of   the Representation  of the People Act (Act XLIII) of  1951  that every order of an Election Tribunal made under the Act shall be  final  and conclusive, the High Court  and  the  Supreme Court  have unfettered jurisdiction to examine  whether  the tribunal, in the exercise of its undoubted jurisdiction, has acted  legally  or otherwise, This  jurisdiction  cannot  be taken  away by a legislative device that purports to  confer power  on a tribunal to act illegally.  The legality  of  an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal.  It is a part  of the  law of the land which cannot be finally  determined  or altered  by any tribunal of limited jurisdiction.  The  High Courts  and the Supreme Court alone can determine  what  the law of the land is vis-a-vis all other Courts and  tribunals and they alone can pronounce with authority and finality  on what  is  legal  and  what is not.   All  that  an  inferior tribunal can do is to reach a tentative conclusion which  is



subject  to  review  under  Articles  226  and  136  of  the Constitution.   The  jurisdiction of the High  Courts  under Article 226, with that of the Supreme Court above them,  re- main  it-,  fullest  extent  despite  section  105  of   the Representation 2 of  the  People Act.  Limitations on the exercise  of,  such jurisdiction can only be imposed by the Constitution. The  powers  of  the High Courts under Article  226  of  the Constitution are discretionary and, though no limits can  be placed  upon  that discretion, it must  be  exercised  along recognised  lines and not arbitrarily.  In the  exercise  of their jurisdiction under Article 226, the High Courts should not  act  as Courts of Appeal or revision  to  correct  mere errors of law which do not occasion injustice in a broad and general sense.  It is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about special rights, as in election cases, decided as speedily as may  be.   The High Courts should  not  therefore  entertain petitions  for  prerogative writs lightly in this  class  of case. The  appellant filed an election petition under section  100 of  the Representation of the People -Act.  He  appeared  on the first and ’Subsequent hearing at Kotah.  The proceedings were  then adjourned for certain hearings at  Udaipur.   The appellant did not appear on the first three hearings at that place  so  the  tribunal proceeded ex  parte.   His  counsel appeared  on the fourth hearing but was not allowed to  take any  further part in the proceedings because no  good  cause was shown for the earlier non-appearance and so the tribunal refused to set aside its "ex parte order". Held,  (1) Under section 90(2) of the Representation of  the People Act the procedure for the trial of election petitions is  to  be, as near as may be, the same as in the  trial  of suits under the Civil Procedure Code; (2)  under  the Civil Procedure Code there is no such  thing as  an  ex parte order for non-appearance"  which  precludes further  appearance at an adjourned hearing until the  Order is  set aside.  If a party appears at an  adjourned  hearing the  court  has  a  discretion  (which  must  be   exercised judicially) either to allow him to appear oil such terms  as it thinks fit, or to disallow further appearance; but (3)  if  he is allowed to appear then, unless good cause  is shown  under Order 9, rule 7 for the earlier  non-appearance the  proceedings must continue from the stage at  which  the later  appearance  is  entered and the  party  so  appearing cannot  be relegated to the position he would have  occupied if he had appeared at the earlier hearing or hearings; also, (4)  in  exercising its discretion the court must  see  that justice is done to all concerned, including the witnesses Rule  6  (1) (a) of Order 9 of the Civil Procedure  Code  is confined  to  the  first hearing of the suit  and  does  not apply,  per  se to subsequent hearings. 0. 9, r. 7  gives  a party a right to be relegated to the position he would  have occupied  if  he  had appeared at  the  earlier  hearing  or hearings if he shows good cause.  It does not per se prevent further appearance when no good cause is shown.  O. 17, r. 2 applies  at  the adjourned hearing and there, the  Court  is given a wide discretion to make such order as it thinks fit. 3 A code of procedure is a body of law designed to  facilitate justice  and further its ends, and should not be treated  as an  enactment providing for punishments and penalties.   The laws  of procedure are grounded on the principle of  natural justice  which  requires that men should  not  be  condemned



unheard,  that decisions should not be reached behind  their backs, that proceedings that affect their lives and property should  not continue in their absence and that  they  should not  be  precluded from participating in them.   Subject  to clearly  defined exceptions the laws of procedure should  be construed wherever reasonably possible, in the light of that principle.   The court is invested with the widest  possible discretion to see that justice is done to all concerned.  No hard  and fast rule can be laid down; and the court  in  the exercise  of its judicial discretion will have, in  a  given case, to determine what consequences are to follow from non- appearance.  An order awarding costs, or an adjournment,  or the  consideration of the written statement and the  framing of  the issues on the spot, can in some cases meet the  ends of  justice.   In other cases, more drastic  action  may  be called for. By  "ends  of  justice" is meant not  only  justice  to  the parties  but  also  to  witnesses  and  others  who  may  be inconvenienced.   The  convenience of the  witnesses,  which deserves  the  greatest consideration,  is  ordinarily  lost sight  of in this class of case.  Justice strongly.  demands that  this  unfortunate section of the general  public  com- pelled  to  discharge  public duties, usually  at  loss  and inconvenience  to  themselves should not be ignored  in  the over-all  picture  of  what  will best  serve  the  ends  of justice;  and it may well be a sound exercise of  discretion in a particular case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant  to  cross-examine them.   But  broadly  speaking, after   all  the  various  factors  have  been  taken   into consideration and carefully weighed, the endeavour should be to  avoid  snap decisions and to afford the parties  a  real opportunity of fighting out their cases fairly squarely. The  Court must in every case exercise the discretion  given to  it.   Its hands are not tied by a  so-called  "ex  parts order", and, if it thinks they are tied by rule 7 of Order 9 of the Code, then it is not exercising the discretion  which the law says it should, and in a given case interference may be called for. Held,  that  the  Election Tribunal  did  not  exercise  the discretion  given to it by law because of a  misapprehension that  it  had  none.  It was directed to do so  now  and  to proceed  with the further hearing of the case in  accordance with law. Hari  Vishnu v. Ahmed Ishaque ([1955] 1 S.C.R. 1104),  Darga Shankar  Mehta  v. Thakur Raghuraj Singh  ([1955]  1  S.C.R. 267),  and Raj Krushna Bose v. Binod Kanungo ([1954]  S.C.R. 913,  918), applied.  Hariram v. Pribhdas (A.I.R. 1945  Sind 98,  102), distinguished.  Sewaram v. Misrimal (A.I.R.  1952 Raj. 12, 14), overruled. Venkatasubbiah v. Lakshminarasimham (A.I.R.  1925  Mad. 1274), approved  Balakrishna  Udayar  v. Vasudeva Ayyar (I.L.R. 40 Mad, 793), 4 T.   M.  Barret v. African Products Ltd. (A.I.R.  1928  P.C. 261, 262) and Sahibzada Zeinitlabdin Khan v. Sahibzada Ahmed Baza Khan (5 I.A. 233, 236), applied. Case remitted to, the Tribunal:

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 214 of 1954. Appeal  under  Article 133 (1) (c) of  the  Constitution  of India  from the Judgment and Order dated the 17th July  1953 of  the, High Court of Rajasthan (Bapna and Ranawat JJ.)  in



Civil Writ Application No. 128 of 1953. R.   K. Rastogi and Ganpat Rai, for the appellant. R.   C. Prasad, for S. L. Chhibber, for respondent No. 2. 1955.  March 22.  The Judgment of the Court was delivered by BOSE  J.-The second respondent Bhurey Lal filed an  election petition  under  section 100 of the  Representation  of  the People  Act  against  the appellant Sangram  Singh  and  two others for setting aside Sangram Singh’s election. The  proceedings commenced at Kotah and after some  hearings the  Tribunal made an order on 11-12-1952 that  the  further sittings  would  be  at Udaipur from the 16th  to  the  21st March,  1953.  It was discovered later that the 16th  was  a public  holiday,  so on 5-1-1953 the dates were  changed  to "from  the  17th March onwards" and the  parties  were  duly notified. On the 17th the appellant did not appear nor did any of  the three counsel whom he had engaged, so the Tribunal proceeded ex parte after waiting till 1-15 P.m. The  Tribunal examined Bhurey Lal and two witnesses  on  the 17th,  five more witnesses on the 18th and on the  19th  the case was adjourned till the 20th. On the 20th one of the appellant’s three counsel, Mr, Bharat Raj, appeared but was not allowed to 5 take  any part in the proceedings because the Tribunal  said that  it was proceeding ex parte at that stage.  Three  more witnesses were then examined. On  the  following  day, the 21st,  the  appellant  made  an application  asking  that the ex parte  proceedings  be  set aside  and asking that he be allowed to cross-examine  those of  Bhurey Lal’s witnesses whose evidence had  already  been recorded. The  Tribunal heard arguments and passed an order  the  same day  rejecting  the  application  on  the  ground  that  the appellant had "failed  to  satisfy ourselves that there was -any  just  or unavoidable  reason preventing the appearance of  respondent No.  1  himself  or of any of his  three  learned  advocates between the 17th and the 19th of March, 1953", and it added- "at all events, when para 10 of the affidavit makes it clear that  Shri  Bharatraj had already received  instructions  to appear  on 17-3-1953 there was nothing to justify  his  non- appearance  on the 18th and 19th of March, 1953, if not,  on the 17th as well". The appellant thereupon filed a writ petition under  article 226  of the Constitution in the High Court of Rajasthan  and further proceedings before the Tribunal were stayed. The  High  Court rejected the petition on 17-7-1953  on  two grounds-  (1) "In the first -place, the Tribunal was the authority to decide whether the reasons were sufficient or otherwise  and the  fact that the Tribunal came to the conclusion that  the reasons  set  forth  by  counsel  for  the  petitioner  were insufficient  cannot  be challenged in a  petition  of  this nature" and (2)  "On  the merits also, we feel no hesitation in  holding that  counsel for the petitioner were grossly  negligent  in not appearing on the date which had been fixed for  hearing, more than two months previously". Five  months later, on 16-12-1953, the High Court granted  a certificate under article 133(1) (C) of the Constitution for leave to appeal to this Court, 6 The  only  question before the High Court  was  whether  the



Tribunal  was  right in refusing to  allow  the  appellant’s counsel  to appear and take part in the proceedings  on  and after  the 20th of March, 1953, and the first question  that we  have to decide is whether that is sufficient  ground  to give  the  High  Court  jurisdiction  to  entertain  a  writ petition  under article 226 of the Constitution.   That,  in our  opinion,  is no longer res integra.  The  question  was settled  by  a Bench of seven Judges of this Court  in  Hari Vishnu v. Ahmad Ishaque(1) in these terms: "Certiorari  will also be issued when the Court or  Tribunal acts   illegally   in   the  exercise   of   its   undoubted jurisdiction,  as  when  it decides without  giving  an  op- portunity  to  the  parties to be  heard,  or  violates  the principles of natural justice". That is exactly the position here. It  was  urged that that cannot be so in  election  matters because  of section 105 of the Representation of the  People Act  of  1951 (Act XLIII of 1951), a section which  was  not considered in the earlier case.  It runs thus: "Every  order of the Tribunal made under this Act  shall  be final and conclusive". It  was argued that neither the High Court nor  the  Supreme Court  can itself transgress the law in trying to set  right what  it  considers is an error of law on the  part  of  the Court or Tribunal whose records are under consideration.  It was submitted that the legislature intended the decisions of these tribunals to be final on all matters, whether of  fact or  of  law, accordingly, they cannot be said to  commit  an error  of  law  when,  acting  within  the  ambit  of  their jurisdiction, they decide and lay down what the law is,  for in that sphere their decisions are absolute, as absolute  as the  decisions  of  the Supreme Court  in  its  own  sphere. Therefore,’it was said, the only question that is left  open for examination under article 226 in the case of an Election Tribunal  is  whether  it  acted within  the  scope  of  its jurisdiction. (1)  [1955] 1 S.C.R. 1104,1121, 7 But  this, also, is no longer open to question.   The  point has  been  decided  by three Constitution  Benches  of  this Court.   In  Hari Vishnu v. Ahmad Ishaque(1) the  effect  of section 105 of the Representation of the People Act was  not considered,  but the Court laid down in general  terms  that the jurisdiction under article 226 having been conferred  by the Constitution, limitations cannot be placed on it  except by the Constitution itself: see pages 238 and 242.   Section 105  was,  however,  considered in Durga  Shankar  Mehta  v. Raghuraj  Singh(1) and it was held that that section  cannot cut down or affect the overriding powers of this Court under article  136.  The same rule was applied to article  226  in Rai  Krushna Bose v. Binod Kanungo and others(1) and it  was decided  that section 105 cannot take away or  whittle  down the  powers of the High Court under article 226.   Following those  decisions we hold that the jurisdiction of  the  High Court  under article 226 is not taken away or  curtailed  by section 105. The jurisdiction which articles 226 and 136 confer  entitles the  High Courts and this Court to examine the decisions  of all  Tribunals  to see whether they  have  acted  illegally. That  jurisdiction  cannot be taken away  by  a  legislative device  that purports to confer power on a tribunal  to  act illegally by enacting a statute that its illegal acts  shall become legal the moment the tribunal chooses to say they are legal.   The legality of an act or conclusion  is  something that  exists outside and apart. from the decision of an  in-



ferior tribunal.  It is a part of the law of the land  which cannot be finally deter-mined or altered by any tribunal  of limited jurisdiction.  The High Courts and the Supreme Court alone  can determine what the law of the land  is  vis-a-vis all other courts and tribunals and they alone can  pronounce with  authority  and finality on what is legal and  what  is not.   All  that an inferior tribunal can do is to  reach  a tentative  conclusion  which  is  subject  to  review  under articles  226 and 136.  Therefore, the jurisdiction  of  the High (1) [1955] 1 S.C.R. 1104, 1121.  (2) [1955] 1 S.C.R. 267. (3) 1954 S.C.R. 913, 918. 8 Courts  under  article 226 with that of  the  Supreme  Court above  them  remains to its fullest extent  despite  section 105. That,  however, is not to say that the jurisdiction will  be exercised  whenever  there  is an error of  law.   The  High Courts do not, and should not, act as Courts of appeal under article  226.   Their powers are  purely  discretionary  and though no limits can be placed upon that discretion it  must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on,  themselves is that they will not exercise jurisdiction in this class of case  unless substantial injustice has ensued, or is  likely to ensue.  They will not allow themselves to be turned  into Courts of appeal or revision to set right mere errors of law which  do  not  occasion injustice in a  broad  and  general sense, for, though no legislature can impose limitations  on these  constitutional  powers  it is  a  sound  exercise  of discretion to bear in mind the policy of the legislature  to have disputes about these special rights decided as speedily as may be.  Therefore, writ petitions should not be  lightly entertained in this class of case. We now turn to the decision of the Tribunal.  The  procedure of  these  tribunals is governed by section 90 of  the  Act. The  portion  of the section that is relevant here  is  sub- section (2) which is in these terms: "Subject to the provisions of this Act and of any rules made thereunder,  every election petition shall be tried  by  the Tribunal,  as  nearly  as may be,  in  accordance  with  the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits". We  must therefore direct our attention to that  portion  of the Civil Procedure Code that deals with the trial of suits. Now  a  code of procedure must be regarded as such.   It  is procedure,  something  designed to  facilitate  justice  and further  its ends: not a penal enactment for punishment  and penalties;  not  a thing designed to trip  people  up.   Too technical a construction of sections that leaves no room for reasonable elasticity of inter- 9 pretation  should  therefore be  guarded  against  (provided always  that  justice is done to both sides) lest  the  very means  designed  for the furtherance of justice be  used  to frustrate it. Next,  there must be ever present to the mind the fact  that our laws of procedure are grounded on a principle of natural justice  which  requires that men should  not  be  condemned unheard,  that decisions should not be reached behind  their backs, that proceedings that affect their lives and property should  not continue in their absence and that  they  should not  be  precluded from participating in them.   Of  course, there must be exceptions and where they are clearly  defined they  must be given effect to.  But taken by and large,  and



subject  to  that proviso, our laws of procedure  should  be construed,  wherever  that is reasonably  possible,  in  the light of that principle. The  existence of such a principle has been doubted, and  in any  event  was condemned as unworkable and  impractical  by O’Sullivan, J. in Hariram v. Pribhdas(1).  He regarded it as an  indeterminate term "liable to cause  misconception"  and his  views  were shared by Wanchoo, C. J. and Bapna,  J.  in Rajasthan:  Sewa  Ram  v. Misrimal(1).  But that  a  law  of natural  justice  exists in the sense that a party  must  be heard  in  a  Court of law, or at any rate  be  afforded  an opportunity  to appear and defend himself, unless  there  is express  provision  to the contrary, is,  we  think,  beyond dispute.   See  the  observations of the  Privy  Council  in Balakrighna  Udayar v. Vasudeva Ayyar(3), and especially  in T.  M.  Barret  v.  African  Products  Ltd.(1)  where   Lord Buckmaaster  said  "Do  forms or procedure  should  ever  be permitted  to  exclude  the  presentation  of  a  litigant’s defence".   Also  Hari  Vishnu’s case  which  we  have  just quoted. In  our opinion, Wallace, J. was right in VenkataSubbiah  v. Lakshminarassimham(5)   in   holding  that   "One   cardinal principle  to be observed in trials by a Court obviously  is that a party has a right to (1) A.I.R 1945 Sind 98,102 (2)  A.I.R. 1952 Raj. 12,14. (3)  A.I.R. 40 Mad. 793, 800 (4)  A.I.R. 1928 P.C. 261, 262. (5)  A.I.R. 1925 Mad. 1274. 2 10 appear and plead his cause on all occasions when that  cause comes  on  for hearing", and that "It follows that  a  party should  not be deprived of that right and in fact the  Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it". Let us now examine that Code; and first, we will turn to the body of the Code.  Section 27 provides that "Where  a  suit has been duly instituted, a summons  may  be issued to the defendant to appear and answer the claim". Section 30 gives the Court power to "(b) issue summonses to persons whose attendance is required either  to  give evidence or to produce  documents  or  such other objects as aforesaid". Then  come the penalties for default.  They are set  out  in section 32 but they are confined to cases in which a summons has been issued under section 30.  There is no penalty for a refusal  or an omission to appear in response to  a  summons under  section  27.  It is true  certain  consequences  will follow  if  a  defendant  does  not  appear  and,  popularly speaking, those consequences may be regarded as the  penalty for  nonappearance, but they are not penalties in  the  true sense of the term.  They are not punishments which the Court is  authorised  to administer for disregard of  its  orders. The antithesis that section 32 draws between section 27  and section  30 is that an omission to appear in response  to  a summons  under section 27 carries no penalty in  the  strict sense,  while  disregard of a summons under section  30  may entail  punishment.  The spirit of this distinction must  be carried  over  to  the First  Schedule.   We  deprecate  the tendency of some Judges to think in terms of punishment  and penalties  properly  so called when they should  instead  be thinking  of compensation and the avoidance of injustice  to both sides. We  turn  next to the Rules in the First  Schedule.   It  is



relevant  to note that the Rules draw a distinction  between the first hearing and subsequent hearings, 11 and that the first hearing can be either (a) for  settlement of issues only., or (b) for final disposal of the suit. First, there is Order V. rule 1: "................................ a summons may be issued to the defendant to appear and answer the claim on a. day to be therein specified". This  summons  must state whether the hearing is to  be  for settlement of issues only or for final hearing (rule 5).  If it is for final hearing, then (rule 8): "it  shall also direct the defendant to produce, on the  day fixed for his appearance, all witnesses upon whose  evidence he intends to rely in support of his case". Then comes Order VIII, rule 1 which expressly speaks of "the first hearing".  Order IX follows and is headed  "Appearance of parties and consequence of non-appearance". Now the word "consequence" as opposed to the word  "penalty" used  in  section  32 is  significant.   It  emphasises  the antithesis  to  which we have already drawn  attention.   So also  in rule 12 the marginal note is "Consequence  of  non- attendance"  and the body of the rule states that the  party who does not appear and cannot show sufficient cause "shall  be  subject to all the provisions of  the  foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear". The use of the word "penalty" is scrupulously avoided. Our attention was drawn to rule 6(2) and it was argued  that Order IX does contemplate the imposition of penalties.   But we do not read this portion of the rule in that light.   All that  the  plaintiff  has to do here is  to  pay  the  costs occasioned  by  the postponement which in  practice  usually means the cost of a fresh summons and the diet money and  so forth  for such of the witnesses as are present;  and  these costs the plaintiff must pay irrespective of the result. Rule I of Order IX starts by saying- "On the day fixed in the summons for the defendant to appear and answer................................................." 12 and the rest of the rules in that Order are consequential on that.    This  is  emphasised  by  the  use  of   the   word "postponement" in rule 6 (1)(c), of "adjournment" in rule  7 and  of  "adjournment" in rule 1. Therefore,  we  reach  the position  that Order IX, rule 6 (1) (a), which is  the  rule relied on, is confined to the first hearing of the suit  and does not per se apply to subsequent hearings: see  Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan(1). Now  to analyse rule 6 and examine its bearing on the  first hearing.  When the plaintiff appears and the defendant  does not appear when the suit is called on for hearing, if it  is proved     that    the    summons    was    duly     served- "(a).................................................... the Court may proceed ex parte". The  whole question is, what do these words mean?   Judicial opinion  is sharply divided about this.  On the one side  is the  view  propounded by Wallace, J.  in  Venkatasubbiah  v. Lakshminarasimham(2)  that  ex  parte merely  means  in  the absence  of  the other party, and on the other side  is  the view  of O’Sullivan, J., in Hariram v. Pribhdas(3)  that  it means  that the Court is at liberty to proceed  without  the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance.  The  re- maining  decisions, and there are many of them, take one  or the other of those two views.



In  our opinion, Wallace, J. and the other Judges who  adopt the  same  line of thought, are right.  As we  have  already observed,  our laws of procedure are based on the  principle that,  as far as possible, no proceeding in a Court  of  law should  be  conducted to the detriment of a  person  in  his absence.  There are of course exceptions, and this is one of them.   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 (1)  5 I.A. 233, 236. (2)  A,I.R. 1925 Mad. 1274. (3)  A.I.R. 1945 Sind 98, 102. 13 parte  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.   The contrast in language between rules 7 and 13 emphasises this. Now,  as we have seen, the first hearing is either  for  the settlement  of issues or for final hearing.  If it  is  only for the settlement of issues, then the Court cannot pass  an ex parte decree on that date because of the proviso to Order XV,  rule  3(1) which provides that that can only.  be  done when "the parties or their pleaders are present and none of  them objects". On  the other hand, if it is for final hearing, an ex  parte decree  can be passed, and if it is passed, then  Order  IX, rule  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 rule 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 therefore  no order to set aside the order  is  contemplated either.  But a decree is a command or order of the Court and so can only be set aside by another order made and  recorded with due formality. Then  comes  rule 7 which 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, as it has been by some  learned Judges,  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 he would have occupied if he  had appeared, 14 We  turn next to the adjourned hearing.  That is dealt  with in Order XVII.  Rule I (1) empowers the Court to adjourn the hearing  and whenever it does so it must fix a day "for  the further  hearing of the suit", except that once the  hearing of the evidence has begun it must go on from day to day till all  the witnesses in attendance have been  examined  unless the Court considers, for reasons to be recorded in  writing, that a further adjournment is necessary.  Then follows  rule 2- "Where.,  on  any day to which the hearing of  the  suit  is adjourned,  the parties or any of them fail to  appear,  the



Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks- fit". Now  rule 2 only applies when one or both of the parties  do not  appear on the day fixed far the adjourned hearing.   In that  event, the Court is thrown back to Order IX  with  the additional  power  to make "such order as  it  thinks  fit". When  it  goes back to Order IX it finds that  it  is  again empowered  to proceed ex parte on the adjourned  hearing  in the same way as it did, or could have done, if one or  other of  the parties had not appeared at the first hearing,  that is  to say, the right to proceed ex parte is a  right  which accrues  from day to day because at each  adjourned  hearing the  Court is thrown back to Order IX, rule 6. It is  not  a mortgaging of the future but only applies to the  particular hearing  at which a party was afforded the chance to  appear and did not avail himself of it.  Therefore, 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, rule 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. But  what  exactly does that import?  To determine  that  it will be neces- 15 sary to hark back to the first hearing. We  have already seen that when a summons is issued  to  the defendant  it  must  state whether the hearing  is  for  the settlement  of issues only or for the final disposal of  the suit (Order V, rule 5).  In either event, Order VIII, rule I comes  into  play and if the defendant does  not  present  a written statement of his defence, the Court can insist  that he  shall; and if, on being required to do so, he  fails  to comply- "the Court may pronounce judgment against him, or make  such order  in  relation to the suit as it  thinks  fit".  (Order VIII, rule 10). This  invests the Court with the widest possible  discretion and  enables it to see that justice is done to  both  sides; and also to witnesses if they are present: a matter on which we shall dwell later. We  have  seen that if the defendant does not  appearat  the first  hearing, the Court can proceed exparte,  which  means that  it can proceed without a written statement; and  Order IX,  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  Order VIII, rule 10 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. ID  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 oil the spot and  issues framed.   In other cases, the ends of justice may  call  for more drastic action. Now  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.  It  is  an unfortunate  fact  that the convenience of  the  witness  is ordinarily lost sight of in this class of case and yet be is the one that deserves 16 the  greatest  consideration.  As a rule, he is  not  parti- cularly  interested  in  the  dispute  but  he  is   vitally interested  in  his  own affairs which he  is  compelled  to abandon because a Court orders him to come to the assistance of  one  or  other of the parties to  a  dispute.   His  own business has to suffer.  He may have to leave his family and his  affairs for days on end.  He is usually out of  pocket. Often  he is a poor man living in an out of the way  village and  may have to trudge many weary miles on foot.  And  when he gets there, there are no arrangements for him.  He is not given accommodation; and when he reaches the Court, in  most places  there  is no room in which he can wait.  He  has  to loiter about in the verandahs or under -the trees, shivering in  the cold of winter and exposed to the heat of  summer  , wet  and  miserable in the rains: and  then,  after  wasting hours and sometimes days for his turn, he is brusquely  told that  he must go back and come again another  day.   Justice strongly  demands  that  this  unfortunate  section  of  the general public compelled to discharge public duties, usually at  loss  and  inconvenience to themselves,  should  not  be ignored in the over all picture of what will best serve  the ends  of  justice  and it may well be a  sound  exercise  of discretion  in  a given case to refuse  an  adjournment  and permit  the plaintiff to examine the witnesses  present  and not allow the defendant to cross-examine them, still less to adduce  his own evidence.  It all depends on the  particular case.   But broadly speaking, after all the various  factors have  been taken into consideration and  carefully  weighed, the  endeavour  should  be to avoid snap  decisions  and  to afford  litigants a real opportunity of fighting  out  their cases  fairly and squarely.  Costs will be adequate  compen- sation  in  many cases and in others the  Court  has  almost unlimited discretion about the terms it can impose  provided always  the  discretion is judicially exercised and  is  not arbitrary. In the Code of 1859 there was a provision (section 119) which said that- "No appeal shall lie from a judgment passed exparte  against a defendant who has not appeared". 17 The  Privy  Council  held  in  Sahibzada  Zeinulabdin   Khan v.   Sahibzada Ahmed Raza Khan(’ ) that this only applied to a  defendant  who  had not appeared at  all  at  any  stage, therefore,  if once an appearance was entered, the right  of appeal  was  not taken away.  One. of the grounds  of  their decision was that- "The  general rule is that an appeal lies to the High  Court from  a  decision  of a civil or subordinate  Judge,  and  a defendant  ought not to be deprived of the right of  appeal, except by express words or necessary implication". The general rule, founded on principles of natural  justice, that  proceedings  in  a  Court of  justice  should  not  be conducted  behind the back of a party in the absence  of  an express provision to that effect is no less compelling.  But that apart.  It would be anomalous to hold that the efficacy of the so-called ex parte order expends itself in the  first Court  and  that thereafter a defendant can  be  allowed  to appear  in the appellate Court and can be beard and  can  be permitted to urge in that Court the very matters he is  shut out  from urging in the trial Court; and in the  event  that



the  appellate Court considers a remand necessary he can  be permitted to do the very things he was precluded from  doing in the first instance without wetting the exparte order  set aside under Order IX, rule 7. Now  this is not a case in which the defendant with whom  we are concerned did not appear at the first hearing.  He  did. The first hearing was on 11-12-1952 at Kotah.  The appellant (the  first defendant) appeared through counsel and filed  a written  statement.   Issues were framed and  the  case  was adjourned till the 16th March at Udaipur for the petitioners evidence alone from the 16th to the 21st March.   Therefore, Order IX, rules 6 and 7 do not apply in terms.  But we  have been obliged to examine this order at length because of  the differing views taken in the various High Courts and because the contention is that Order XVII, rule 2 throws one back to the  position  under  Order IX, rules 6 and  7,  and  there, according to one set of (1)  5 I.A. 233. 3 18 views,  the  position is that once an ex  parte  "order"  is "Passed" against a defendant he cannot take further part  in the  proceedings unless he gets that ’corder" set  aside  by showing good cause under rule 7.   But that is by no means the case. If  the defendant does not appear at the  adjourned  hearing (irrespective  of  whether or not he appeared at  the  first hearing)  Order XVII, rule 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 Order IX or make such other order as it thinks fit". The point is this.  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 Order IX,  rule  7 then it is not exercising the discretion which the law  says it  should and, in a given case, interference may be  called for. The  learned  Judges  who constituted a Full  Bench  of  the Lucknow Chief Court (Tulsha Devi v. Sri Krishna(1) ) thought that if the original ex parte order did not enure throughout all future hearings it would be necessary to make a fresh ex parte  order at each succeeding hearing.  But this  proceeds on  the  mistaken  assumption  that an  ex  parte  order  is required.   The order sheet, or minutes of the  proceedings, has to show which of the parties were present and if a party is  absent  the  Court records that fact  and  then  records whether  it  will proceed ex parte against him, that  is  to say, proceed in his absence, or whether it will adjourn  the hearing;  and it must necessarily record this fact at  every subsequent bearing because it has to record the presence and absence  of  the  parties at each  hearing.   With  all  due deference  to the learned Judges who hold this view,  we  do not think this is a grave or a sound objection. A much weightier consideration is that the plaintiff may  be gravely prejudiced in a given case because, as ,the  learned Rajasthan  Judges point out, and as O’Sullivan, J.  thought, when a case proceeds ex parte, (1)  A.I.R. 1949 Oudh 59. 19 the  plaintiff does not adduce as much evidence as he  would have  if  it had been contested.  He contents  himself  with leading  just  enough  to  establish  a  prima  facie  case. Therefore, if he is suddenly confronted with a contest after he has closed his case and the defendant then comes  forward with an army of witnesses he would be taken by surprise  and



gravely prejudiced.  That objection is, however, easily  met by  the wide discretion that is vested in the Court.  If  it has reason to believe that the defendant has by his  conduct misled  the plaintiff into doing what these  learned  Judges apprehend,  then it might be a sound exercise of  discretion to shut out cross-examination and the abduction of  evidence on  the defendant’s part and to allow him only to  argue  at the  stage  when arguments are heard.  On  the  other  hand, cases  may occur when the plaintiff is not and ought not  to be,  misled.   If these considerations are  to  weigh,  then surely  the  sounder  rule is to leave  the  Court  with  an unfettered discretion so that it can take every circumstance into consideration and do what seems best suited to meet the ends of justice in the case before it. In the present case, we are satisfied that the Tribunal  did not  exercise its discretion because it considered  that  it had  none and thought that until the ex parte order was  set aside  the defendant could not appear either  personally  or through  counsel.  We agree with the Tribunal, and with  the High  Court,  that  no  good cause  was  shown  and  so  the defendant had no right to be relegated to the position  that he would have occupied if he had appeared on 17-3-1953,  but that  he had a right to appear through counsel on  20-3-1953 and  take part in the proceedings -from the stage  at  which they had then reached, subject to such terms and  conditions as  the  Tribunal might think fit to impose,  is  we  think, undoubted.   Whether he should have been allowed  to  cross- examine  the  three witnesses who were  examined  after  the appearance  of his counsel, or whether he should  have  been allowed to adduce evidence, is a matter on which we  express no  opinion,  for that has to depend on  whatever  view  the Tribunal in a sound exercise of judicial discretion will 20 choose to take of the circumstances of this particular case, but  we can find no justification for not at least  allowing counsel to argue. Now the Tribunal said on 23-3-1953- "The exact stage at which the case had reached before us  on the  21st of March 1953 was that under the clear  impression that  respondent  No. 1 had failed to appear from  the  very first date of the final hearing when the ex parte order  was passed,  the  petitioner  must have closed  his  case  after offering as little evidence as he thought was just necessary to get his petition disposed of exparte.  Therefore, to  all the respondent No. 1 to step in now would certainly handicap the petitioner and would amount to a bit of injustice  which we can neither contemplate nor con done". But  this assumes that the petitioner was misled and  closed his  case "after offering as little evidence as  he  thought was  just  necessary  to get his  petition  disposed  of  ex parte".  It does not decide that that was in fact the  case. If  the  defendant’s  conduct  really  gave  rise  to   that impression  and  the  plaintiff  would  have  adduced   more evidence  than he did, the order would be unexceptional  but until  that is found to be the fact a mere assumption  would not  be a sound basis for the kind of discretion  which  the Court  must exercise in this class of case  after  carefully weighing  all  the relevant circumstances.   We,  therefore, disagreeing  with  the  High  Court  which  has  upheld  the Tribunal’s order, quash the order of the Tribunal and direct it to exercise the discretion vested in it by law along  the lines  we  have indicated.  In doing so  the  Tribunal  will consider  whether the plaintiff was in fact misled or  could have  been  misled if he had acted with  due  diligence  and caution.  It will take in-to consideration the fact that the



defendant  did  enter an appearance and did file  a  written statement and that issues were framed in his presence;  also that the case was fixed for the "Petitioner’s" evidence only and  not for that of the appellant; and that the  petitioner examined  all the witnesses he had present on the  17th  and the 18th and did not give up any of them; that he was given 21 an  adjournment on 19-3-1953 for the  examination  witnesses who  did not come on that date and that the  examined  three more  on  20-3-1953  after  the  defendant  had  entered  an appearance  through counsel an( claimed the right to  plead; also whether, when the appellant’s only protest was  against the  bearings a Udaipur on dates fixed for the  petitioner’s evidence  alone, it would be legitimate for a  party  acting with due caution and diligence to assume that the other side had  abandoned his right to adduce his own  evidence  should the hearing for that be fixed at some other place or at some other date in the same place. The  Tribunal  will also consider and determine  whether  it will  be proper in the circumstances of this case  to  allow the appellant to adduce his own evidence. The Tribunal will now reconsider its orders of the 20th, the 21st  and  the  23rd  of March 1953  in  the  light  of  our observations and will proceed accordingly. The  records  will be sent to the Election  Commission  with directions  to that authority to reconstitute the  Tribunal, if  necessary, and to direct it to proceed with this  matter along the lines indicated above. There will be no order about costs. 22