NAZIR AHMAD vs HIDAYAT ALI And Other
This matter concerns a petition for leave to appeal against the concurrent findings of the lower courts, which upheld an ex parte decree passed against the petitioner. The petitioner sought to set aside the ex parte decree under Order IX, Rule 13 of the Code of Civil Procedure 1908, but the trial court dismissed the application on grounds of limitation and merits, a decision affirmed by the first appellate court. The core legal question was whether the trial court erred in proceeding ex parte when the petitioner's counsel pleaded 'no instructions' on the date of the hearing. The Supreme Court held that when a counsel pleads no instructions, the party effectively remains unrepresented, justifying the court's decision to proceed ex parte. Furthermore, the Court found the petitioner's contention that the suit was not fixed for hearing on the date of the decree to be factually incorrect. Consequently, the High Court correctly refused to exercise revisional jurisdiction under Section 115 of the Code of Civil Procedure 1908. The petition for leave to appeal was dismissed.
- Does a counsel pleading 'no instructions' on the date of hearing justify the court in proceeding ex parte against the party?
- Can the High Court interfere with concurrent findings of fact under its revisional jurisdiction?
- Is an application to set aside an ex parte decree liable to be dismissed if it is time-barred?
- Order IX Rule 13, Code of Civil Procedure 1908
- Section 115, Code of Civil Procedure 1908
ORDER
1. S.A. NUSRAT, J.--In a suit brought by the respondents Nos. 1 and 2 against the petitioner an ex parte decree was passed by trial Court on 26-4-1978. The petitioner made an application under Order IX, Rule 13, C . P. C . For setting aside the ex parte decree which was dismissed by the trial Court as barred by time as well as on merits. The petitioner's appeal before the First Appellate Court also met the same fate. It was contended before the First Appellate Court that no ex parte decree could be passed on 26-4-1978 as the suit was itself not set down for hearing on the said date. This was found to be factually incorrect as the suit was fixed for hearing on 26-4-1978. It was next contended that the petitioner's counsel having pleaded no instructions on the said date the trial Court should not have proceeded ex parte. This contention too was examined by the learned High Court and rightly rejected on the ground that in such evantuality the petitioner remained unrepresented and the suit was rightly proceeded ex parte. The learned High Court, in the circumstances, refused to exercise jurisdiction under section 115, C.P.C. In view of the concurrent findings of fact recorded by the Courts below. This is not a fit case for the grant of leave and the petition is accordingly dismissed.