JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for possession of certain property.
2. It appears that the property in question had been sold by Musammat Reoti Koer on the 29th November 1916 to one Chandan Singh. The case for the plaintiff was that Musammat Reoti Koer had no authority to sell this property as she had only the estate of a Hindu widow.
3. Chandan Singh is dead and is represented on the record by his sons and grandsons. The defence put up to the suit was that Musammat Reoti Koer was full owner of the property under a Will executed by her husband in her favour. We have to deal, in the first instance, with the history of the suit in the Court of first instance.
4. It seems quite clear that after the plaint had been filed summons were issued to the defendants and a date was fixed for first hearing and for framing of issues.
5. It is not disputed that the defendants all combined to file a written statement embodying the defence to which we have just alluded. Issues were framed and a date was fixed some months ahead for final disposal of the case, the parties being directed to have their evidence in Court upon the date so appointed.
6. The case came up before the Additional Subordinate Judge on the 3rd of September 1920. On that date one of the defendants Raghubir Singh, (defendant No. 1) was present in Court. The Pleader who appeared for the defendant was also present. He informed the Court that he had no instructions to defend the case. Raghubir Singh asked the Court to adjourn the case for certain reasons and the Court made an order that if Raghubir Singh would deposit a sum of Rs. 100 in two hours an adjournment would be allowed. This order was not complied with by the defendant, Raghubir Singh.
7. The defendant, Dambar Singh, who is defendant No. 4, was absent on this date.
8. What happened then was this. The Subordinate Judge took the evidence which had been produced by the plaintiff and as there was no evidence on behalf of the defendant he disposed of the case at once coming to findings upon all the issues which had been framed. The result of his proceedings was that he gave the plaintiff a decree for possession and for mesne profits:
9. After this decree has been passed Dambar Singh, who was absent on the date on which the suit was decided, appeared before the successor-in-office of the Subordinate Judge who had decided the case and made an application to have the decree set aside, the application being treated as one under Order IX, Rule 13.
10. Dambar Singh supported his application by an affidavit alleging that on the date in question he had been ill and unable to attend the Court and to enforce the presence of his witnesses.
11. Notice having been issued to the plaintiff the latter filed a counter-affidavit. The Subordinate Judge, after considering the affidavits tendered by both parties, came to the conclusion that the former decree, should be set aside and exercised his power for that purpose. After the decree had been set aside certain evidence which was put forward by the defendants was received on record and the result was that the second judgment was passed in favour of the defendants. The final judgment dismissed the plaintiff's suit with costs to the defendants. The plaintiff now appeals and the first point which has been raised on his behalf is that the Court below was not competent to set aside the earlier decree under the provisions of Order XI, Rule 13.
12. We have, in the first place, to consider what was the state of affairs when the Subordinate Judge passed his judgment on the 3rd of September 1920.
13. It seems clear, from what has already been set out, that on that date he had before him a case which fell within the purview of Order XVII, Rule 2.
14. We think it is right to say that there can, strictly speaking, be no ex parte proceedings against any defendant who has entered an appearance and filed a defence. That to our mind is clear from the provisions of Order IX. Order XVII, Rule 2, applies to the particular case where the hearing of the suit had been adjourned and where, on the adjourned date, the parties or any of them fail to appear.
15. In that case Order XVII, Rule 2, enables the Court, if it so chooses, to deal with the case as being one under Order IX or to make such other order as it thinks fit.
16. It has to be considered here that there is nothing in the judgment of the 3rd September 1920 to indicate that the Additional Subordinate Judge was dealing with the case under Order IX. No mention of the provisions of Order XVII, Rule 2 or of Order IX is made in the judgment and the contention, therefore, is that the decision was really a decision on the merits and that the decree which was based upon this judgment could not be set aside by an application made under Order IX, Rule 13.
17. There has been a great deal of conflict of judicial decisions regarding the interpretation of the provisions of Order IX and Order XVII, We have, however, to notice a decision of a Bench of this Court which is reported as Phul Koer v. Hashmat Ullh Khan 29 Ind. Cas. 553 : 37 A. 460 : 13 A.L.J. 679. It was there held that on the proper interpretation of Order XVII, Rule 2, a Court cannot pass a judgment on the merits under covet of the words "make such other order as it thinks fit." The learned Judges of this Court were of opinion that the other order here referred to could only mean an order for further adjournment.
18. In the present case no order for further adjournment was made and a judgment was in fact delivered and it seems to us, therefore, that under the view of law taken by the learned Judges of this Court it must be deemed that the Additional Subordinate Judge was in reality taking action under Order IX and that his judgment and decree should be treated as ex parte proceedings. If that is so, then there can be no doubt that Dambar Singh was entitled to apply to the Court under Order IX, Rule 13 to have this ex parte decree set aside. We agree with the view of the law which was taken by a Bench of the Calcutta High Court in Enatulla v. Jiban Mohan Roy 23 Ind. Cas. 769 : 41 C. 956 : 18 C.W.N. 775 : 19 C.L.J.
19. So much for the first and second grounds of appeal. Coming to the merits, the case for the appellant here is that the defendants were not entitled to succeed inasmuch as there was no admissible evidence before the Court to show that Minda Lal, the husband of Musammat Reoti Koer, had left a Will in her fuvour constituting her the full owner of the property in dispute.
20. This plea is based upon the fact that the defendants were not able to produce in Court the original Will in favour of Musammat Reoti Koer. It is proved that on the date fixed for the first hearing of the case the defendants filed a certified copy of the Will obtained from the Registration Office.
21. In order to ascertain whether secondary evidence of the Will was allowable evidence was taken, and we have the statement of one Sundar Lal, a Patwari. He was one of the attesting witnesses of the Will and deposed to its due execution. He stated that, after the death of the testator, the original Will came into the possession of one Din Dayal who was the brother of Musammat Reoti Koer and who acted as her Mukhlar. Sunder Ial further deposed that Din Dayal was dead and that no other members of the family either of Reoti Koer or of her husband were now in existence.
22. In these circumstances, the learned Judge of the Court below thought that a sufficient foundation had been laid for the admission of secondary evidence and, as he rightly observes, it was hardly possible for the defendants in this case who are the legal representatives of the transferee of the property to produce the original Will which was made by Minda Lal.
23. We are satisfied, therefore, that the judgment of the Court below cannot be attacked on this ground.
24. The last ground taken in the memorandum of appeal is that on a proper construction of the Will Musammat Reoti Koer was not the absolute owner of the property in dispute. Hiving read the document we think there can be no dispute as to this matter. The Will, in our opinion, clearly constitutes Musammat Reoti Koer the full owner of her husband's property after his death. The result, therefore, is that the appeal fails and is dismissed. We make no order as to costs as the respondents have not been represented before us.