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Where plaintiff failed to pay in Commissioner's fees--no time being granted -and the suit was dismissed, the order was not considered as passed under this section-Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510.
Non-attendance of Witnesses.- A suit cannot be dismissed under this section for non-attendance of witnesses-Mahomed Azeemoollah vs. Ali Buksh, 5 Alla., 74. And if a suit is dismissed for want of evidence, the decision is a decision on the merits, and not under this section-kartick Chandra vs. Sridhar, I. L. R., 12 Cal., 563.
Judgment. — The suit should be either dismissed or decreed ; "struck off” is not a proper mode of disposing of the case, and has no legal effect. Thus, where defendant pleaded that a previous snit on the same canse of action had been dismissed under this section, and the final order was “ number kharij,” it was held that no judgment had been passed, and the plea of res juilicata must fail-Khoob Lall vs. T'oolsee, 17 W. R., 219; but where an Appellate Court "struck off” a case instead of using the correct expression, the Court held that, practically as regards procedure, the case had been decided ex-parte --Bejoy Gobind vs. Rauha Benote, 10 W. R., 348, and see Ganesh Rai vs. Kalka, I L. R., 5 Alla., 595 ; Kudrat v. Dinu, I. L. R., 9 Alla., 57 ; Alwar vs. Seshammai, I. L. R., 10 Mad., 270.
Res Judicata.---The dismissal of a suit under this section does not amount to a res judicata-Chand Kour vs. Partab Singh, 15 Ind. App., 156; 1. L. R., 16 Cal., 98 ; Shankar vs. Dya, 15 Ind. App., 66 ; Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510.
Appeal.- A plaintiff cannot only appeal but take advantage of the procedure allowed under section 103—1 shrufunnissa vs. Lehareau., I. L. R., 8 Cal., 272 ; Luckridas vs. Ebrahim, I. L. R., 2. Bom., 611; Karuppan vs. Ayyathorai, I. L. R., 9 Mad., 445, ; Ablakh vs. Bhagirathi, I. L R., 9 Alla., 427; and see section 510, post, as amended by Act VII of 1888.
Where a suit was improperly decided under section 111, Act VIII, 1859 (this section), and was remanded on appeal that it might be decided under section 118, it was held that fresh evidence could not be taken, but that the case should have been decided on the record-Puuma Lochan vs. Sirilar Khan, 3 B. L. R., App. 91.
103. When a suit is wholly or partially dismissed under
section 102, the plaintiff shall be precluded Decree against plaintiff by default bars from bringing a fresh suit in respect of fresh suit.
the same cause of action. But he may apply for an order to set the dismissal aside ; and, if it be proved that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
No order shall be made under this section unless the plaintiff has served the defendant with notice in writing of his application.
Act VIII of 1859, section 119. This section applies to H. C. and P. S. C. C.
Same Cause of Action.-The cause of action has no relation to the defence set up, nor does it depend on the relief prayed for by the plaintiff. It refers to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour-Chanil K’our vs. Partab Singh, 15 Ind. App., 156; I. L. R., 16 Cal., 98, and when the plaintiff prayed that he might on payment of a mortgage be put in possession as under proprietor, and subsequently sued to be put in as superior proprietor, it was held that the cause of action were the same as the claim to be put in as proprietor or sub-proprietor only referred to the manner in which the mortgage should be redeemed-Shankar vs. Dya, 15 Ind. App., 66 ; I. L. R., 15 Cal., 422.
A suit brought to recover rent and dismissed for default, does not bar a suit for possession--Gobind Chunder vs. Afzul, 12 C. L. R., 29. A sued as purchaser of the equity of redemption, to redeem the mortgagee in possession. His suit was dismissed under section 102, ante. Subsequently A sued mortgagor and mortgagee for possession of the land on the ground that the mortgagor had agreed to sell the equity of redemption and to redeem the mortgagee, and the latter had afterwards purchased the mortgagor's interest with notice : Held, they were different causes of action-- Ramchandra vs. Khatal, I. L. R., 10 Bom., 28.
Application of Section.-This section applies to miscellaneous proceedingsSeetul Pershad vs. Mahomed, 5 Alla., 161 ; Kalee Kristo vs. Mahomed Kader, 12 W. R., 428, to rent cases under Act VIII of 1869 (B. C.)-Oodwunt Mahtoon vs. Bidhee Chund, 18 W. R., 207; to proceedings under section 9 of the Specific Relief Act-Anthony vs. Dupont, I. L. R., 4 Mad., 217; Sheo Prasad vs. Kastura, I. L. R., 10 Alla., 119; and in execution of decree-Ningappa vs. Gangawa, I. L. R., 10 Bom., 433, but only to original cases-- Ram Lull Chouilhry vs. Giridharee Jha, W. R., 1864, Mis., 21; and not to cases in appeal- Anonymous Case, 1 Ind. Jur., 0. S., 68 ; Omda Bibee vs. Acowrie Singh, 7 W. R., 425, followed in Kali Kishore vs. Dhununjoy, I. L. R., 3 Cal., 228, see the special procedure on hearing appeals laid down in Chapter XLI, section 555, et seq.
In the case of Eshunchunder vs. Soorjo Lall, Marsh., 139, the suit was dismissed for plaintiff's default in appearing before a Commissioner sent to make a local investigation. It was urged in appeal that s ction 114, Act VIII of 1859 (corresponding to section 102) did not apply, as the parties were present in the Judge's Court by means of their vakils; the Court (Peacock, C. J., Bayley, J., and Kemp, J.) overruled the objection, and decided that that section applied. By section 157, infra, the present procedure applies to any day to which the hearing of the suit may be adjourned, but not to the case of a person obtaining time to do some act and making default. That falls under section 158-Sriraja vs. Anumukonda, I. L. R., 7 Mad., 41. See “Suit," infra.
Does not apply.—This section does not apply to suits dismissed for any other reason than non-appearance and includes acts dealt with under section 157, post, but not those disposed of under section 158, post. When the first hearing of the case took place on the 16th of November, and the final hearing was fixed for the 22nd of January, and on the 23rd plaintiff's vakil stated that since his witnesses had not appeared, he could not go on with the case, and it was dismissed : Held, the dismissal was not under section 119, Act VIII of 1859, but section 148 (correspoding to section 158, infra)-Coma. lammal vs. Rungasawamy, 4 Mad., 56 ; Furzana vs. Ali Buksh, 5 Alla., 74 ; Kashi Parshad vs. Debi Das, 7 Alla., 77, and generally if time is given to do an act and it is not performed, section 158 applies, otherwise 157. See notes under sections 157 and 178, post. And where a case was dismissed in “default of prosecution” on the ground that the plaintiff fail to deposit talabana, the order was not considered to be an order passed under this section-Ram Sundar vs. Ram Bandhan, 7 Alla., 126 ; and see Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510. So also where it was dismissed, because neither plaintiff nor his pleader appeared on the day fixed for hearing the arguments, it was held this section did not apply-Rai Chand vs. Mathura Prasad, I. L. R., 3 Alla., 292.
Review.-In such cases no review can be granted under this section, but only under the ordinary law for review of judgment-Ram Sundar vs. Ram Bandhan, 7 Alla., 126.
Sufficient Cause. As to sufficient cause, see Manelil vs. Ghulam, I. L. R., 13 Bom., 12.
Appeal-An appeal lies from an order refusing to set aside the dismissal of a suit which is itself open to appeal (section J88), but no ppeal lies against order directing a suit to be re-admitted-Hiruhamun Sha vs. Jinghoor Sha, I. L. R., 5 Cal., 711 ; an appeal will also lie against the decree-Ashruff'unnissa vs. Lehareaux, I. L. R., 8 Cal., 272; Ablakh vs. Bhagirakhi, I. L. R., 9 Alla., 427.
Suit.-It has, however, been held that although this section applies to execution-proceedings, still section J88, el. 8, is confined to suits and does not give an appeal when an application under section 311 post, is rejected-Ningappa vs. Gangawa, I. L. R., 10 Bom., 433; Raja vs. Srinivasa, I. L. R., 11 Mad., 319. But see the meaning of suit in Bhoopendro, vs. Baroda I. L. R., 18 Cal., 500; Re Wallis, 23 L. R., Ir., 7. See the cases cited under “ APPEAL," section 102. 104. If, on the day fixed for the hearing of a suit
against a defendant residing out of British Procedure where defendant residing out India, who has no agent empowered to of British India does
accept service of summons, or on any day not appear.
to which the hearing has been adjourned, the defendant does not appear, the plaintiff may apply to the Court for permission to proceed with his suit, and the Court may direct that the plaintiff be at liberty to proceed with his OʻK., CIV, P.
suit in such manner and subject to such conditions as the
more of them appear, and the others do not
the plaintiff or plaintiffs appearing, permit
the suit to proceed in the same way as if all
more of them appear, and the others do
Court shall, at the time of passing judg-
ment, make such order as it thinks fit with respect to the defendants who do not appear.
Act VIII of 1859, section 116. This section applies to H. C. and P. S. C. C.
Where all the defendants did not appear, and, the case proceeding an ordinary decree was given against them on a ground common to them all, it was held that the decree was not an e.e-parte decree against the absent defendants- Doorga Churn vs. Shamanund, 12 W. R., 376.
107. If a plaintiff or defendant, who has been ordered
to appear in person under the provisions
the satisfaction of the Court for failing
Act VIII of 1859, section 117. This section applies to H. C. and P. S. C. C.
A person failing to appear in person in obedience to a personal summons may have
Appeal.-Where a suit was dismissed for default by plaintiff under this section, no
Of setting aside Decrees ex-parte.
against a defendant, he may apply to the
su paroli hearing, and curs hand in abune of a partir ul adfound
keming (prinsul for by s. 157.) 21 Cal. 269. OB.D. 368. livan minden is. can
appral reakred a hun
from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Act VIII of 1859, section 119. This section applies to H. C. and P. S. C. C.
Appeal - When an application made under this section is rejected, an appeal lies against the order of rejection --Section 588 (9) post; but not a second appeal-Aubinash Chunder vs. Martin, I. L. R., 8 Cal., 832. No appeal lies from an order setting aside the decree-Shama vs. Hurbuns, I. L. R., 16 Cal., 426.
Review.-An ex-parte decree is liable to review-Bibi Mutto vs. Ilahi Begum, I. L. R., 6 Alla., 65; Harihur vs. Buddu, 13 C. L. R., 254. See“ REMEDIES,” section 100, ante, and “APPEAL,” section 101, ante.
For defendant's remedy where the suit has been decided ex-parte under section 157, post, see Ramtahal v. Rameshar, I, L. R., 8 Alla., 140.
Appellate Court.--Quære, if this section applies to the case of a respondent failing to appear in the Court of Appeal-Kali Kishore vs. Dhununjoy, I. L. R., 3 Cal., 228.
Probate.-As to revoking a grant in common form, see Nistariny vs. Brahomoyi, I. L. R., 18 Cal., 45.
109. No decree shall be set aside on No decree to be set
any such application as aforesaid, unless aside without notice to notice thereof in writing has been served opposite party.
on the opposite party. This section applies to H. C. and P. S. C. C. Ex-parte.--See note under section 100.
Execution.—This section applies to excution-proceedings-Gour Mohun vs. Tarachand, 3 B. L. R., App. 17 ; Ram Kristo vs. Tara Dass, 12 C. L, R., 449.
Change from Act X of 1877.-In section 108, Act X of 1877 the words were “in any case in which a decree is passed ex-parte against a defendant under section 100,” and it was not clear whether that section applied to cases where the decree was passed on a day to which the case has been adjourned, or whether its effect was confined to the first hearing. The corresponding section of Act VIII of 1859 was held to refer only to the first hearing in Comalammal vs. Rungasawmy, 4 Mad., 56 ; but the point did not arise in the case. A decision to the same effect was passed in the case of Gorachand vs. Raghu, 3 B. L. R., App. 121.
And see Zeinulabdin vs. Ahmed Raza, 5 Ind. App., 233; Sheo Churn vs. Heera, 11 C. L. R., 537. On the other hand, it was decided in Kalee Churn vs. Modhoo, 6 W. R., 86, that the corresponding section of Act VIII of 1859 applied to all cases decided ex-parte on certain grounds ; but at the same time the defendant was not debarred from appealing by the express words of that section (now omitted in Act X, 1877) if the default by non-appearance had taken place at an adjourned hearing-Kalee Churn vs. Modhoo, 6 W. R., 86; and in Denoo Paroye vs. Chinta Monee, 18 W. R., 457, it was held that, where a defendant was prevented from appearing on the last day through the fraud of his adversary, the decision was an ex-parte decision within this section, although he had been present at the first hearing. Í'he omission of the words “under section 100” in the present Act removes all doubt as to the proper interpretation of these sections.
But this section will not apply where the case has been dismissed, not for default by non-appearance, but for something else. Thus, on the day fixed for hearing, defendant's pleader obtained an adjournment to procure certain documents and put in written statements. He failed to do either, and on the day fixed the case was decreed in favour of the plaintiff. It was held that the decree was, under section 148, Act VIII of 1859 section 158, infra), and not under section 119, Act VIII of 1859 (this and the previous section)-Rungasawmy vs. Sirangan, 4 Mad., 254 ; and see Anantharama vs. Madhava, 1. L. R., 3 Mad., 264. See cases ander sections 157 and 158, post.
Court.-The Court remains the same though the presiding officers may be different, and a Judge can revive a suit tried by his predecessor-Rughoo Mohinee vs. Kasee Nath Roy, 10 W. R., 156.
Sufficient Cause. A bona fide mistake which is not unreasonable is sufficient to have the case restored ; such as supposing a month to mean a calendar month-Haradatrai vs. Victoria Finance Association, 3 Bom., 60. Where it was the duty of an attorney's clerk to examine every evening the board for next day and inform his master, and, the former neglecting his duty, no one appeared, and the case was disposed of in default, it was restored on payment of the costs of the hearing—The Oriental Corporation vs. The Mercantile Corporation, 2 Bom., 267 ; and where defendant was not represented at the trial, because his solicitor was ignorant of the fact that the suit had been transferred to another Judge, the ex-parte judgment was set aside on payment of the costs of the day- Burgoine vs. Taylor, 9 C. D., 1.
It is sufficient for an infant to show that his guardian was negligent--Kesho Pershad vs. Hirday Narain, 6 C. L. R., 69; but the fact that the counsel or pleader may have been engaged elsewhere is not sutticient-Raj Narain vs. Akroor Chunder, 24 W. R., 141. Where the absence was due to an understanding which had been come to between the parties for an adjournment on account of the illness of an absent witness, the suit was restored on an affidavit to that effect-- Damodur Dass vs. Choonee Bebee, 2 Hyde, 216 ; so where the absent party has had no intimation when the case would come on ex-parte-Manishankar, 2 Bom., 381 ; and so if the defendant proves that he has not been served with summons at all- Anund Moyee vs. Anund Soondur, 13 W.R., 237, or not in sufficient time to appear-Awlad vs. Abdool, 18 W. R., 141, or has been improperly served --Chanbasappa vs. Mainaba, 7 Bom., A. C., 138, it is sufficient; and where it was shown that there was only one summons, and that the serving-officer had merely posted it on the door of one of the defendants, without attempting to serve him personally, it was held that all the defendants were entitled to have the suit restored-Shiboo Roy vs. Kashee, 25 W. R., 391 ; otherwise as regards the one defendant if he had been properly served--Ewing vs. Gosai las, 3 B. L. R., App., 7.
A suit was remanded for trial by an order dated the 28th December. It was dismissed for default on the 8th of January : Held, that the date was such as precluded the party most interested from appearing, and that an application made soon after by petitioner as representative of a former party, to have his name substituted and the case revived should have been acceded to-Haradhun vs. Protap Narain, 14 W. R., 101.
Proof of.-Sufficient cause is proved either by the oath of the petitioner, or by petition supported by an affidavit-Damodur Doss vs. Choonee Bebee, 2 Hyde, 226 ; Haradatrai vs. Victoria Finance Association, 3 Bom., 60; Anund Moyee vs. Anund Soondur, 13 W. R., 237; and if the requirements of the section are carried out, the application cannot be refused on other grounds, such as that the ancestors of the applicants were parties to the original proceedings out of which the case arose-Doorgaranee vs. Jadub Chunder, 5 W. R., Mis., 11.
The onus of proof lies on the applicant-Torab Ali vs. Chooramun, 24 W. R., 262; but if he makes out a prima facie case, the other party must rebut it-Jhutoo Kooer vs. Lulita, 22 W. R., 423.
Divorce.- As to how a decree nisi granted ex-parte may be attacked, see Stephen vs. Stephen, I. L. R., 17 Cal., 570.
Limitation.- Under Art. 161, Sched. II of the Limitation Act, the application should be made within 30 days from the date of executing any process for enforcing judgment. This thirty days begins to run from the first actual and complete execution of any process-Gholam Ahyah vs. Sham Soondur, 7 W. R., 375; Bhaobunessury vs. Judobendra, I. L. R., 9 Cal., 869 ; Sunraj vs. Ambika, I. L. R., 6 Alla., 144. Whether against the person or property of the defendant-Shib Chunder vs. Luckhee Debia, 6 W. R., Mis., 51; and process against the person of the debtor is not necessary-Baba Bruhm Purgash vs. Dumree Lalí, 1 Alla., 133. Thus attachment, irrespective of the sale under it is sufficient-Bhaobunessury vs. Judobendra, I. L. R., 9 Cal., 869; Radha Binode vs. Digamburee Dassee, B. L. R., (F.B.) 917; nor is notice of the process on the debtor necessary-Shumboo Chunder vs. Ram Lall, 13 W. R., 436 ; for if the process has been duly executed the law presumes that the judgment-debtor must know of it-Boro Khosiah vs. Jata Sirdar, 15 W. R., 315. But mere notice of execution is not a process, and is insufficient-Poorno Chunder vs. Prosonno Coomar, I. L. R., 2 Cal., 123; and see Sunraj vs. Ambika, I. L. R., 6 Alla., 144.
Before a Judge can enter into an enquiry whether notice has or has not been served on the applicant in first instance, when the suit was commenced, he must first determine if the application for re-hearing has been made in proper time-In the matter of Pearee Mohun Dutt, 11 W. R., 310.
Not Debtor's Property.—The limit is within 30 days from the process for enforcing judgment, and this means process against the person or property of the judgmentdebtor; and if the process is not personal, time does not begin to run until his property has been affected. So a judgment-debtor is not debarred from coming in more than 30 days after attachment, provided he shows the property attached is not his-Shib Chunder vs. Luckhee Debia, 6 W. R., Mis., 51; Sookh Moyee vs. Normooda, 15 W. R., 210; but nothing less than this amount of proof will suffice. Where defendant petitioned that he had been obliged to leave his village and settle in a place 24 miles distant, and that he was not in possession of the lands against which the process issued, the petition was rejected-Kalee Prosad vs. Digambur, 25 W. R., 72.