Mirza Dildar Husain v. Pahalwan — 1949 DIGILAW 342 (ALL)

JUDGMENT Chandiramani, JJ. - Both these are Defendants' appeals arising under the following circumstances: It appears that one Irshad Husain was possessed of some property. Mehdi-Begam, on the one hand, was alleged to be his wife and on the other she was alleged to be merely his mistress and not the married wife. Irshad Husain died on 17th October 1944. Disputes then arose as to his property between Mehdi Begam on the one hand and Dildar Husain, brother of Irshad Husain, and Mumtaz Husain, nephew of Irshad Husain on the other hand. There were apparently proceedings Under Sections 107 and 145, Code of Criminal Procedure and the properties were attached and handed over to a supurdar towards the end of October 1944. On 26th December 1944, Mst. Mehdi Begam also died. On 12th January, 1945, the Plaintiffs Pahalwan and Daulat filed a suit, No. 5 of 1945(sic) for recovery of possession of a one fourth share of the property of Irshad Husain by partition alleging that Mehdi Begam was the wife of Irshad Husain and was entitled to one-fourth share of his property and on her death they (the Plaintiffs) being her nephews were entitled to that property. Plaintiffs 3 and 4 Bahadur Mirza and Akhtar Ali are transferees of a person from (?) share. The Defendants in that suit were Dildar Husain, brother of the deceased Irshad Husain, and Mumtaz Husain, nephew of the deceased Irshad Husain and Mat. Sarwari, sister of Irshad Husain. Mst Sarwari disclaimed any interest in the property and was discharged. On behalf of the other two Defendants several objections were made among them were that Mst. Mehdi Begam was not the married wife of Irshad Husain and that the Plaintiffs 1 and 2 were not the nearest heirs of Mst. Mehdi Begam. Evidence was led in the case on various dates beginning from 19th March, 1945, and on 9th July 1945 a compromise was produced in Court on behalf of the Plaintiffs. The compromise came up for consideration before the. Court on 13th July, 1945, and the fact of the compromise was denied. An issue was accordingly framed and it was directed that the matter should come up for hearing on 27th July 1947. On 27th July the Plaintiffs did not wish to rely on the alleged compromise. The compromise came up for consideration before the. Court on 13th July, 1945, and the fact of the compromise was denied. An issue was accordingly framed and it was directed that the matter should come up for hearing on 27th July 1947. On 27th July the Plaintiffs did not wish to rely on the alleged compromise. Mumtaz Husain Defendant was not present The Court directed the evidence in the case to come up on the following day, the 28th July. On 28th July, Mumtaz Defendant was present in person. The proceedings which had been made ex-parte against him the previous day were set aside on the prayer of Mumtaz. Such witnesses as he had were examined that day and his prayer for time to call other witnesses was rejected. The Plaintiffs' suit was in the result decreed on 31st July 1945. An appeal against the decree failed and then a second appeal was filed, which is No. 167 of 1946. 2. The Plaintiffs Pahalwan and Daulat of suit No. 5 of 1945 filed another suit No 12 of 1945 on 14th February, 1945, alleging that the property in List A of the plaint was the personal property of Mehdi Bsgam and that on her death they were her heirs and entitled to it. They were joined in the suit by Bahadur Mirza, Plaintiff No. 3 and his wife Razia Khatoon, Plaintiff No. 5, who alleged that they were owners of the property in List, B. Bahadur Mirza, Plaintiff No 3, and Akhtar Ali, Plaintiff No. 4. claimed to be the transferees of half of the property of List A from Plaintiffs 1 and 2. It was alleged on their behalf that this property had been attached as the property of Irshad Husain. Originally the suit was for declaration, but subsequently it was converted into one for the recovery of possession. The Defendants in the suit were Dildar Husain, brother of the deceased Irshad Husain, and Mumtaz Husain, nephew of the deceased Irshad Husain. 3. The main defence was that the properties in dispute were those of Irshad Husain and not of the Plaintiffs or Mehdi Begam. The properties in the suit were different from those in suit No. 5 of 1945. Issues were framed and on 29th May, 1915, it was ordered that the parties should produce their evidence on 27th and 28th July, 1945. The properties in the suit were different from those in suit No. 5 of 1945. Issues were framed and on 29th May, 1915, it was ordered that the parties should produce their evidence on 27th and 28th July, 1945. In suit No. 5 of 1945, however, a compromise was filed and it came up before the Court on 13th July 1945. This compromise covered properties of both the suits, No. 5 of 1945 and No. 1 of 1945. After the issue on the question of compromise had been framed it was directed that the matter should be put up on the 27th July when suit No. 12 of 1945 was fixed for evidence As already stated the question of compromise was not pressed by the Plaintiffs and the Court ordered the case to come up for hearing on 28th July, 1945. The Defendant Mumtaz Husain was not present on 27th July and the proceedings were ordered to be ex parte against him. On 28th July the Plaintiffs led some of their evidence and produced some of themselves and a mukhtaram.(sic) They prayed for time to produce further evidence, but this prayer was rejected. Defendant Mumtaz Husain was allowed to cross-examine the Plaintiff's witnesses. Defendant Dildar Husain did not cross-examine at all. Dildar Husain did not produce any other evidence at all, but Mumtaz Husain requested the Court to give him time to summon his witnesses, but this prayer was refused on the ground that the exparte order against him had not been set aside and he had not prayed for its being set aside. The case was closed and the Plaintiffs' suit was decreed on 31st July 1945, the same date on which suit No. 5 was decreed. It is against this decree that the First Appeal No. 109 of 1945 has been filed. 4. As in both these appeals there was a common question as to whether Plaintiffs Pahalwan and Daulat were the nearest heirs of Mehdi Begam these two appeals have been heard together. 5. Several objections have been made in both the appeals, but the one which in our opinion is sufficient for us to dispose of the two appeals is whether the trial Court was justified in refusing to grant any opportunity to the Plaintiffs and the Defendants to produce their evidence. 5. Several objections have been made in both the appeals, but the one which in our opinion is sufficient for us to dispose of the two appeals is whether the trial Court was justified in refusing to grant any opportunity to the Plaintiffs and the Defendants to produce their evidence. It seems to us that sufficient, opportunity was not given and in the circumstances both the appeals will have to be allowed and the suits remanded to the trial Court for giving an opportunity for production of further evidence. 6. It has been pointed out that the question of compromise raised on 13th July 1945 covered both the suits Nos. 5 and 12 of 1945. At that time in suit No. 5 the Defendants had to produce their evidence while in Suit No. 12 both the parties had yet to produce their evidence for which 27th and 28th July, 1945, were fixed. On 27th July the question of the compromise had to be considered and we note that no evidence had been summoned either by the Plaintiffs or by the Defendants. Both the parties were, therefore, clearly under the impression that only the question of compromise would be considered on 27th July and they would not be called upon to lead evidence on the merits of the two suits. In all fairness to the trial Court it must be said that nowhere did it give the parties specifically to understand that on 27th July only the question of compromise would be considered, but the parties apparently were under the impression that only the question of compromise would be considered. The trial Court itself encouraged this impression by not calling upon the Plaintiffs in Suit No. 12 of 1945 to lead their evidence on that day, the 27th July, but on the contrary fixed the 23th July for evidence. On 28th July in Suit No. 5 of 1945 Mumtaz Husain obtained an order setting aside the order of ex- parte proceedings against him and he was allowed to produce only such witnesses as were present, but was not given time to summon other witnesses. We do not think that the learned trial Court exercised its discretion properly in the circumstances of this case. The rules of procedure have been made for furthering the ends of justice and the rules should be enforced accordingly. We do not think that the learned trial Court exercised its discretion properly in the circumstances of this case. The rules of procedure have been made for furthering the ends of justice and the rules should be enforced accordingly. Nothing would have been lost if the learned trial Court had given an opportunity to Mumtaz Husain to produce further evidence. We are satisfied that, this is a fit case in which an opportunity should have been given to Defendant Mumtaz to produce such further relevant evidence as he considered necessary. 7. As regards Suit No. 12 of 1945, the case was taken up for evidence not on 27th July - the date fixed, but on the following day, 28th July 1945. After producing some evidence the Plaintiffs' counsel stated that his other witnesses were absent and the case may be adjourned but the request was refused. The Defendant No. 1, Dildar Husain, had no witnesses present and he closed the case. Defendant Mumtaz had no witnesses present and requested for time(sic), but. this prayer was rejected on the ground for time, but this prayer was rejected on the ground that there was an order that the case would proceed ex parte against him passed the previous day and that that order had not been set aside and so Defendant Mumtaz had no right to ask for an adjournment. We think that the learned Judge was trying to be too technical in a petty matter. As a matter of fact it appears that in spite of the existence of the order that the proceedings against him would be ex-parte he was allowed to participate in the proceedings by cross examining the witnesses produced by the Plaintiffs. He had already been successful in getting the ex parte order in the other case set aside the very same day and the Court below would have been perfectly justified in formally setting aside the order which had make the proceedings ex-parte against Mumtaz. However, we think that the trial Court having permitted Defendant Mumtaz to cross-examine the witnesses had thereby impliedly set aside the order which make the proceedings ex parte against Mumtaz and he was not quite correct in his view when refusing the application for adjournment that the ex parte order had not been set aside. In Mst. However, we think that the trial Court having permitted Defendant Mumtaz to cross-examine the witnesses had thereby impliedly set aside the order which make the proceedings ex parte against Mumtaz and he was not quite correct in his view when refusing the application for adjournment that the ex parte order had not been set aside. In Mst. Tulsha Devi v. Sri Krishna A.I.R 1949 Oudh 59 a Full Bench of the late Oudh Chief Court held that: An ex-parte order under Order 9, Rule 6(1) (a), unless sec aside, precludes a Defendant from subsequently appearing and participating in the proceedings from the time of his appearance. 8. Had, therefore, the ex-parte order been in existence Defendant Mumtaz would not have been allowed to cross-examine the Plaintiffs' witnesses. We are satisfied that the view which the learned trial Court took of the matter was not justified and the Court ought to have allowed the Defendant an opportunity to summon his witnesses. 9. Accordingly we would allow First Civil Appeal No. 109 of 1945, set aside the decree of the Court below and remind the suit for disposal according to law after giving an opportunity to the Plaintiffs and the Defendants to produce such relevant evidence as they consider necessary in the suit. Costs of this appeal shall be borne by the parties and the costs in the trial Court shall abide the result we would allow Second Civil Appeal No. 167 of 1946, set aside the decree of the Court below and remand the suit for disposal according to law after permitting the Defendants in the suit to produce such relevant evidence as they consider necessary. The parties should bear their own costs of the appeal in this Court, but the other costs shill abide the result Misra, J. 10. I agree. 11. We allow First Civil Appeal No. 109 of 1945, set aside the decree of the Court below and remand the suit to the trial Court for disposal according to law after giving an opportunity to the Plaintiffs and the Defendants to produce such further relevant evidence as they consider necessary in the suit. Costs of this appeal shall be borne by the parties and the costs in the trial Court shall abide the result. Costs of this appeal shall be borne by the parties and the costs in the trial Court shall abide the result. We also allow Second Civil Appeal No. 167 of 1946, set aside the decree of the Court below and remand the suit to the trial Court for disposal according to law after permitting the Defendants in the suit to produce such relevant evidence as they consider necessary. The parties should bear their own costs of the appeal in this Court, but the other costs shall abide the result.