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TMI Blog1955 (3) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Appeal No. 214 of 1954. - - - Dated:- 22-3-1955 - BOSE, VIVIAN JAGANNADHADAS, B. SINHA AND BHUVNESHWAR P., JJ. For the Appellant : R. K. Rastogi and Ganpat Rai For the Respondent: R. C. Prasad and S. L. Chhibber JUDGMENT: 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs 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 ([1955] 1 S.C.R. 1104,1121) 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajasthan: Sewa Ram v. Misrimal (A.I.R. 1952 Raj. 12,14). 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 (A.I.R. 40 Mad. 793, 800), and especially in T. M. Barret v. African Products Ltd.( A.I.R. 1928 P.C. 261, 262) 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 (A.I.R. 1925 Mad. 1274) in holding that "One cardinal principle to be observed in trials by a Court obviously is that a party has a right to 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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....................................." and the rest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necessary 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff 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". The Privy Council held in Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan(5 I.A. 233) 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inks 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 (A.I.R. 1949 Oudh 59) 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 beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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