CHAPTER VII. Licet antestari? Ego vero Oppono auriculam. Rapit in jus, clamor utrinque : Undique concursus. THIS chapter calls for little comment. It provides the consequences which ensue to either party in the event of their making default to appear on the day fixed in the summons. The Changes made in the old procedure are very few. The principal are (1) Where neither party appears, the suit need not be dismissed, when the Judge, for reasons recorded under his hand, otherwise directs. (2) Where the plaintiff does not appear, but the defendant appears and admits part only of the plaintiff's claim, the Court shall dismiss the suit so far as relates to the remainder. (3) Where the defendant appears, and the suit is wholly or partially dismissed owing to the non-appearance of the plaintiff and the plaintiff applies for an order to set the dismissal aside, the defendant shall be served with notice of the application. Attention is drawn to the Calcutta, Bombay, N.-W. P. and Panjab circular orders contained in the preface to chaps. VI. and VII, They contain provisions relating to the institution, registration and fixing of date for hearing of suits. By the time they were sent to press, the editor had not had access to those from Madras and the Central Provinces. This must be his apology for inserting here matter which should with more consistency have appeared there. In MADRAS, then, the hours of business are fixed from 10 a. M. till sunset (Mad. C. O. p. 63.) Plaints are to be received daily by the sheristadars of Courts, and the date of presentation noted on them, after which they must be brought the same day to the Judge to be initialled, or stamped in his presence. In rejecting plaints, a judicial order will be recorded in the Court diary, the original plaint placed among the records, but not numbered or entered in the register. Copies of endorsements on the back of plaints returned will also be placed on record. Persons whose vernacular is English may present plaints in that language; but if defendant or Judge be unacquainted with English, a translation of the pleadings in the language of the Court must also be put in, under the signature of the party or his pleader. No pleading to be registered, until the Judge has examined it with reference to secs, 53, 54 and 57, and ordered that it shall be brought on the file. When pleadings are put in under general power of attorney, the certified copy of such power must be put on record. If two pleadings are connected, a note must be made by a party or pleader on each of them, describing the other with which it is connected. Plaints anonymous, forwarded by post or telegraph, couched in language disrespectful to Judge of any Court or public officer, containing terms of reproach against the other party, written illegibly or unintelligibly, will not be registered. Verbal corrections, with permission of Court, may be made at any time, ib. 76. See further notes to sec. 117. In the CENTRAL PROVINCES a plaint must be received at any time during Court hours, its institution is not to be delayed by orders for janch and report (I. p. 197.) The Clerk of the Court or other responsible officer should certify whether it is properly stamped (384 and 385). With reference to RECOGNIZED AGENTS, Act VIII. of 1859, s. 17, (present Act secs. 36, 38,) was introduced, subject to this proviso:-Recognized agent was defined as a permanent servant, partner, relation or friend, whom the Court may admit as a fit person to represent a party, and especially persons holding powers of attorney from absent parties, persons carrying on business on behalf of bankers and traders, managing agents of landholders, nearest male relatious of women, and persons ex officio authorized to act for Government, or for any prince or chief (I. 45). With reference to unfitness, the following tests are mentioned: the servitude of uncertificated and unqualified mukhtars permanently taken into a trader's service for the sole purpose of attending court and conducting suits. A person may be unfit on account of educational deficiencies or special ignorance of matter litigated. Again, in particular cases there may be special reasons for determining a person to be unfit. But as the mass of litigation is simple, a permanent servant, partner, relation,friend, other person specified in special proviso, who may be entrusted by a party with the conduct of his suit, would ordinarily be fit and should be admitted ib. 246, 247. As to RETURN OF PLAINT after registration, in case Roshan Khan v. Lachman ib. 494, it was held that such procedure is correct. In Ramgutty v. Goonomonee Debla 8. W. R. XI, 177, it is laid down that it is an acknowledged rule of law that a Court cannot divest itself of its jurisdiction until it is quite clear that it cannot exercise that jurisdiction, and until in all cases of doubt it has ascertained, after proper enquiry, that it has no jurisdiction, (112) (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant: When summons not duly served. When summons served, but not in due time. (113) (c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (d) If it is owing to the plaintiff's default that the summons was not served in sufficient time, the Court shall order him to pay the costs occasioned by such postponement. M. 101. (111) If the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit, as if he had appeared on the day fixed for his appear Procedure where defendant appears on day of adjourned hearing, and assigns good cause for previ ous non-appearance. ance. Procedure where defendant only appears. M. 102. (114) If the defendant appears, and the plaintiff does not appear, the Court shall dismiss the suit, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. (e) The Chief Commissioner in case of Mussumat Ganga Bai v. Ramchunder Rao, lays down that it must be held to be a fundamental principle in Civil Court practice that suits instituted by persons without a right of suit should be simply dismissed, and that persons with right of suit should not subsequently be allowed entrance into such as plaintiff. (a) The mere filing of a Vakalat namah is not sufficient Musst. Bibi Hala v. Musst. Atwaru S. W. R. VII. 81. Bhimchary Fakirappa &c, Bom. H. C. R. IV. 206. The N.-W. P. H. C in C. O. 7 of 1873, direct all Judges to take their seats in Court by 11 A. M. at the latest, except from April to June, when it is optional to hold early morning sittings. Due notice of the hours of sitting should be given, and such hours should be strictly adhered to. (b) The Jud. Comm. Cen. Pro. (II. 8, and C. O. 21 of 1873) warns against hasty dismissal in default, which is often due to improper pressure on defendants by creditors to come to private, inequitable, and unjust adjustments. (c) The provisions of this and following sections apply also to applications for execution of decrees. Rajpal v. Churaman N.-W. P. 1872, 10; see also Gaur Mohan Bandhopadhya &c. v. Tarachand Bandopadhya B. L. R. III. App. 17. Courts cannot strike cases for execution of decrees off the file except in accordance with these sections. The practice of striking execution cases off the file in order to clear it, and enable judicial officers to make their quarterly returns is strongly condemned. (d) Whenever it is necessary for the court to satisfy itself that a summons, or other process has been duly served, the judicial officer should for that purpose take the evidence of the serving officer and of the who person accompanied him to identify the person to be served. The fixing of copy of the summons on the door of the dwelling house does not constitute effective service under sec. 80 unless reasonable efforts have first been made without success to serve the defendant personally, and unless, moreover, the defendant is actually dwelling in the house at the time. These conditions must therefore be established by the evidence before the judicial officer can be rightly satisfied that service has been duly effected. If the person to be serv ed is elsewhere than at the house pointed out, the serving officer must either seek him out, or return the process under sec. 82; but the fact of the service of summons must always be regularly proved before the commencement of a trial ex-parte. H. C. C. O. Cal. H. C. pp. 6 and 7. Cen. Prov. 1. 30, and Panj. I. 4. (d) Even though defendant does not appear, plaintiff must prove his case to the satisfaction of the Court before obtaining a decree. C. P. I. 31. (e) An appeal lies after an order to set aside the dismissal of a suit from orders rejecting applications under this section in cases open to appeal s. 588. Sec. 111 of Act VIII. (Sec. 100) is subject to the following limitation. in the C. P:-It shall not be obligatory to decide ex parte in the absence of defendant, but the Court shall proceed to compel his attendance under the following rule, being the rule now in force in Oudh: "If the defendant does not appear, it shall be at the discretion of the Court to issue a warrant to arrest him, and detain him till another day appointed for the hearing of * See p. 75. +S. 17., (a) Seen. k. p. 29. §8. 37, 41. M. 103. (119) When a suit is wholly or partially dismissed under this section, *(f) the Decree against plaintiff plaintiff shall be precluded from by default bars fresh suit. bringing a fresh suit in respect of the samet cause of action. But he may apply for *(g) an order to set the dismissal aside; and if it be (h) proved that he was prevented by any sufficient cause from appearing* (i) 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 suit. No order shall be made under the second paragraph of this section unless the plaintiff has served the defendant with notice in writing of his application. *(j) dant residing out of British M. 104. (60) If, on the day fixed for the hearing of a Procedure where defen- suit against a defendant residing out of British India, who has no agent§ empowered to accept service of summons, or on any day 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 plantiff be at liberty to proceed with his suit in such manner and subject to such conditions as the Court thinks fit. M. 105. (115) If there be more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, and pass such order as it thinks fit. Procedure in case of nonattendance of one or more of several plaintiffs. the case, and to attach his property." The Judicial. Commissioner (I 191) points out that such warrants must be issued with discretion, and only when a Court feels satisfied that such a course is really desirable for the ends of justice. Again (II. 8), he warns Courts that an inconsiderate encouragement of verbal applications to enforce immediate execution of decrees may deter defendants, ignorant as to the legal means of avoiding execution by personal arrest, and perhaps only partially indebted, from appearing to defend their cases through fear of imprisoment for the portion they cannot dispute. Lastly (C. O. 21 of 1873), cases are sometimes wrongly dismissed ex parte, because a plaintiff is not prepared to produce his evidence at once, without due consideration as to whether there was sufficient cause for such failure; and again, sometimes simply because defendant could not be found. Courts can only decide ex parte when service on defendant is proved; when defendant can not be found, ordinarily plaintiff should be able to satisfy the Court that there are sufficient grounds to with draw from the suit under sec. 373. Bom. C. O, direct that this service and its proofs should be recorded. If serving peon cannot be detained, his evidence should be taken under sec. 192; a separate deposition in each case. Mad. H. C. point out that where a defendant appears in person or by pleader, his being unprepared to put in a written statement does not warrant the trial of a suit ex parte., II. 311. All the High Courts point out that great care should be taken as to identity of defendant in cases of admission. As to admission by pleader &c., see notes n. o. p. 35. (f) The Calcutta High Court call attention to the fact that there is reason to apprehend that suits are occasionally decided ex parte against a defendant without sufficient enquiry as to service of the summons and that such results may be in some measure due to a feeling on the part of the presiding officer that any hardship may be obviated by an application under sec. 103. District Judges to satisfy themselves that the provisions of sec. 101. (absence of defendant) are carried out according to their true intent, i. e. that the Court in each case proceeds to hear the case ex parte only on proof to its satisfaction that the summons has been duly served. 3. It will be observed that the procedure of sec. 103 is not applicable to suit dismissed under sec. 98. U. C. O. C. H C. p. 36. The first hearing of a suit was fixed for the 10th July, 1867. Neither of the parties nor their vakils appeared. Thereupon the Court dismissed the suit under sec. 158; but afterwards, upon the application of the plaintiff's vakil, restored it to the file for hearing, under sec. 103. Plaintiff obtained further adjournments to produce witnesses. On the last occasion the vakils of both parties appeared, but no witnesses, and the Court again dismissed the suit under sec. 158, for failure to produce witnesses. The suit was again,under sec. 103, restored to the file on the application of the plaintiff's vakil, and a decision come to, for the plaintiff, upon the merits. Held, on special appeal, that the first decree of dismissal, being a decree which might have been made under sec. 157, was one to which sec. 103 might be applied; That the second decree of dismissal was one to which sec. 158 alone applied, consequently one subject only to review or to an appeal,and |