*See p. 75. Procedure in case of nonattendance of one or more of several defendants. a M. 106. (116) If there be more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of passing judgment, make such order as it thinks fit with respect to the defendants who do not appear. M. 107. (117) If plaintiff or defendant, who has been ordered to appear in Consequence of non-attenperson under dance, without sufficient the provisions of section 66 or seccause shown, of party ordertion 436, does not appear in person, ed to appear in person. or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing sections applicable to plaintiffs and defendants respectively who do not appear. Of setting aside Decrees ex parte. M. 108. (119) In Setting aside decree sxparte against defendant. any case in which a decree is passed ex parte against a defendant under section 100, he may apply* (k) to the Court by which the decree was made for an order to set it aside; and if it be proved to*(2)the satisfaction of the Court that the defendant was prevented by any sufficient cause from appearing *(m)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. (n) * M. 109. (119) No No decree to be set aside without notice to opposite party. decree shall be set aside on any such application as aforesaid, unless notice thereof in writing has been served on the opposite party. the proceeding had on the last time being substantially an application for review, was one which the Court had power to grant. Ambalavana Padeiyatchi Subramania Padeiyachi. M. H. C. R. VI, 162. (9) In Ewing and Co. v. Gosaidass Ghose and others, B. L. R. App.III. 7, there were three defendants, all makers of a joint promissory note. A summons was duly served upon the first, Gosaidass Ghose, and a summons for the other two left with him. Neither of these last two applied for leave to appear. A decree was obtained against all three, and Gosaidass Ghose arrested in execution of it. On the matter coming before the High Court, Phear J. held that Gosaidass Ghose could not object to the decree, although the other two defendants could. (k) i. e. a bona fide mistake; one not unreasonable. Hardat Rai Srikiskan Das v. Victoria, &c., Bom. H. C III., 60. The absence of a plaintiff's counsel or attorney, when caused by a bona fide mistake, has been allowed sufficient. Oriental Finance Corporation v. Mercantile Credit and Finance Corporation (Bom H. C. II, 267). The death of a pleader, which occurred without his client being aware of it, Ex parte Ali Khan, Bom. H. C. A. C. IV. 92. (i) Tuis section applies only to those who have never appeared, and not to one who is absent only on an adjourned hearing; [the new Code permits Courts to proceed according to these sections in the case of defendants who are absent at such hearing, sec. 157, but this is entirely optional.] Gorachand Gosami v. Raghu Mandal B. L. R. III. app. 121. Kali Charan Datt v. Modhoo Sudan Ghose S. W. R. VI. 86. An appearance has been made if the plaintiff appear, though he may have failed to produce witnesses. Muhammad Azimullah &c., v. Ali Bakhsh N.-W. P. 1873 p. 74, Kashi Parshad v. Debi Das, &c., 1875, p. 77. But this is not so, if a pleader has been appointed only, and has no instructions. Bhimcharya v. Fakirappa. Bom. H. C. IV., 206. (1) A special appeal will not lie from a regular appeal from an order under this section, (and an appeal only in cases that are open to appeal sec. 588) Carew v. Thummun N.-W. P. 1863, p. 398. see also Mad. H. C. I, 189. Bom. High Court F. B., in Ramshet &c., v. Balkishna, &c., Bom. H. C. VI, 161, following Umda Bibi v. Akauri Sing S W. R. VII, 425, and Tarachand Ghose v. Anand Chandar Chaudhri "ib." X. 450, ruled that a plaintiff successful in a Court of first instance, but who did not appear in regular appeal, was not debarred by such non-appearance from preferring a special appeal. A judge is not empowered to set aside a decree passed under S. 158, M. H. C. IV. 5, 6. Jud. Comm. Cen. Prov. points out in Shambu Kalar v. Bodhi Sing that this does not apply to judgments passed against a plaintiff who did appear although defendant did not. (k) Should bear a Court fees stamp of eight rupees, see Act VII. 1870. Sch. II. 17, Parbati v. Girdhari Lal, S. W. R. IV., 15. (1) In Haro Kishen Dass v. Moti Chand Baboo it was held that where one defendant appears and another defendant defaults, and a decree is obtained against both, the defaulting defendant can apply to get the decree set aside. Should he succeed, the Court cannot open up and investigate the case again with regard to the other defendant. S. W. R. VIII., 260. But in Koroona Moyes Debia v. Naboo Kishan Mukarji there were two defendants, both of whom did not appear, and one only applied under this section and got the case dismissed ex toto: *S. 117, CHAPTER VIII. OF WRITTEN STATEMENTS AND SET-OFF. 110. (120) The parties may, at any time before or at the first hearing of the suit, tender written statements of their respec Written statements. tive cases, and the Court shall receive such statements, and place them on the record. ment. M. 111. (121) If in a suit for the recovery of money Particulars of set-off to the defendant claims to set-off be given in written state- against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, and if in such claim of the defendant against the plaintiff both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards, unless permitted by the Court, tender a written statement containing the particulars of the debt sought to be set-off. The Court shall thereupon enquire into the same, and if it find that the case fulfils the reInquiry. quirements of the former part of this section, and that the amount claimed to be set-off +Seen.m. p. 9, does not exceed† the pecuniary limits of its jurisdiction, the Court shall set-off the one debt against the other.(a) Such set-off shall have the same effect as a plaint in a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but it shall not affect the lien upon the amount decreed of any pleader in respect of the costs payable to him under the decree. Effect of set-off. Illustration. (a) A bequeaths Rs. 2.000 to B. and appoints C his executor and residuary legatee. B dies, and D takes out administration to B's effects. C pays Rs. 1.000 as surety for D. Then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000. (b) A. dies intestate and in debt to B. C takes out administration to A's effects, and B buys part of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A. (c) A sues B. on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off. (d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1.000. The two claims being both definite pecuniary demands may be set-off. It was held that the second defendant, who came in with a petition at the second hearing, had a good locus standi, and could take advantage of the order for dismissal (S. W. R. XI., 18.) (m) Further, in case Ragapa-bin Hamapa v. Parapa-bin-Shioapa a Court of first instance refused to receive the defendant's written statement because it had been tendered after the day on which the Court had ordered it to be filed, and the delay had not been satisfactorily explained. Still the Court framed issues in presence of the defendant's pleader, and allowed him to cross-examime plaintiff's witnesses. The Court gave a decree in plaintiff's favour, which the Judge decided was ex parte. Held it was not ex parte. (n) The period appointed within which a defendant can apply is thirty days from the date of executing any process for enforcing the judgment. For rulings on the computation of this period, and the meaning of the word process, see App. Limitation Act Sch., sec. 158. As to finality of the order passed on these applications, see notes to sec. 584. This section applies also to cases of" execution of decree" disposed of in the absence of the judgment debtor. Sital Parshad, &c., v. Muhammad Karim Khan, &c. N. W. P. 1873, 164. CHAPTER VIII. Interest reipublicæ ut sit finis litium. THIS chapter deals mainly with written statements. Either party may tender them before or at the first hearing of the suit, but not afterwards, except at the request or with the permission of the Court. Such statements are evidence, subject to all the rules in the Evidence Act which bear upon the admission, value, proofs &c., of other documents. The important clause, however, of all the seven which this chapter contains is that relating to a "set-off." This lays down that a set-off can only be recovered under the following circumstances : (a) If the suit in which it is pleaded is one for the recovery of money. (b) If the set-off is (i) an ascertained sum of money (ii) legally recoverable by the defendant from plaintiff. (iii) tendered in a written statement at first hearing of the suit (c) If the parties to the set-off fill the same characters as they fill in the plaintiff's claim. (d) If the amount claimed to be set off does not exceed the pecuniary limits of the Court's jurisdiction. 80. It would seem at first sight that this last is a marked innovation, but it is hardly Under the old Code a defendant had formally to abandon the excess; under the new Code, if he reduces his claim to the bounds of the pecuniary jurisdiction of the Court, he will be barred in a subsequent suit by" Res judicata." 66 (a) This section is now clothed in amount at once ascertainable, and not calling for any further enquiry. The word legally recoverable answers any such questions as to whether a claim barred by limitation can be pleaded as a setoff against a claim not so barred. The Calcutta High Court direct that in each case brought up on ap *S.117. †S.51, 52. (e) A sues B for compensation on account of a trespass. B holds a promissory note for Rs. 1,000 from A, and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands. A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone. (g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A. (h) A owes the partnership firm of B and C. Rs. 1,000. B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.(b) 112. (122) Except as provided in the last preceding ing section, no written statement, shall be received after the first hearing of the suit:(c) No written statemeut to be received after first hear ing unless called for by Court. Provided that the Court may at any time call for written statement. senting the same: Court may at any time require a written statement, or additional written statement, from any of the parties, and fix a time for pre Provided also that a written statement, or an additional written statement, may, with the permission of the Court, be received at any time for the purpose of answering written statements so required and presented.(d) Procedure when party fails to present written statement called for by 113. If any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pass a decree against him, or make such other order in it thinks fit. (e) Court. relation to the suit as Frame of written statements. 114. (123) Written statements shall be as brief as the nature of the case admits, and shall not be argumentative, but shall be confined as much as possible to a simple narrative of the facts which the party by whom or on whose behalf the written statement is made believes to be material to the case, and which he either admits or believes he will be able to prove.(f) Every such statement shall be divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation. Written statements to be 115 (123). Written statements shall be subscribed and verified in the mannert hereinbefore provided for subscribing and verifying plaints, and no written statement shall be received unless it be so subscribed and verified.(g) subscribed and verified. The provisions of section 52 as to examining witnesses as to the fact of signature shall apply in the case of written statements. |