MANU/LA/0367/1932

Equivalent Citation: AIR1933Lah248, 143Ind. C as.355

IN THE HIGH COURT OF LAHORE

Decided On: 19.10.1932
Appellants: Manohar Das
Vs.
Respondent: Darbara Singh and Anr.
JUDGMENT
Jai Lal, J.
1. In a suit for rendition, of accounts the defendant did not appear on the date fixed
and the case was adjourned for his appearance. He was directed to pay Rs. 15 as
costs of the adjournment, at a subsequent hearing. He again made a default and the
Court decided to proceed against him. under Order 17, Rule 3, but the plaintiff had
not his evidence ready; and as the books were in possession of the defendant he was
summoned as a witness on behalf of the plaintiff. In the meantime the defendant
made an application for the-setting aside of the ex parte proceedings against him and
alleged that he-was prevented by illness from appearing in Court. He presented a
medical certificate with his application. The Judge without making any enquiry
dismissed the application and after examining the defendant who was present with
his books as a witness on behalf of the plaintiff awarded a decree for Rs. 1,800
against him. It was contended before; the District Judge on appeal by the defendant
that proceedings under Order 17,. Rule 3 could not be taken against him and that
Order 17, Rule 2, applied to the facts of the case and therefore the trial Judge was
bound to make an inquiry into the allegations made in the application by the
defendant to set aside the ex parte proceedings. The District Judge has held that
Order 17, Rule 2 applied to the circumstances of case but he considers that the
defendant was guilty of contumacious conduct and was not therefore entitled to any
indulgence. He also held that the defence could be and had been struck off under
Order 11, Rule 21. He therefore dismissed the defendant's appeal. Order 11, Rule 21,
however has no application to the facts of this case. The defendant had been directed
as a party to the suit to produce his documents at a particular date and he failed to
do so. The only effect of his default could be that he might lose the right to produce
those documents at a later stage in support of his case. The circumstances which
enable a Court to strike off a plaint or a defence under Order 11, Rule 21, had not
come into existence in this case. No interrogatories had been served upon the
defendant and no order for discovery or inspection of documents such as is
contemplated by Order 11 had been passed.
2. On the finding of the District Judge that the case was covered by Order 17, Rule 2
the trial Court was bound to adjudicate on the application to set aside the order
passed by the trial Court to proceed under Order 17, Rule 2. The Court however
declined to do so. In view of the fact that there is a medical certificate on record in
support of the defendants' allegation it would, in my opinion, delay the case
unnecessarily if an inquiry into the defendant's allegation is ordered. I consider that
the ends of justice would be met if the decree passed by the trial Court is set aside
and also the decree of the District Judge on appeal and the case is remitted to the
trial Court for decision of the case on the merits but this will be conditional on the
appellant defendant paying Rs. 65 as costs incurred by the plaintiff in this Court and
also in the Court of the District Judge, and also Rs. 15 adjournment costs granted

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against the defendant by the trial Court. On payment of Rs. 65 within a month from
today in the trial Court by the defendant that Court will proceed with the case from
the stage at which it was left when the defendant made a default in producing the
books before it, that is to say, the defendant will produce the books which he
produced as a witness and others if he wishes on a date fixed by the Court and then
both the parties shall be given an opportunity to produce their respective evidence.
The order of payment of Rs. 65 as costs is irrespective of the result of this suit.

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