SANGRAM SINGH v. ELECTION TRIBUNAL; KOTAH, BHUREY LAL BAY A

By "ends of justice" is meant not only justice to the parties but also to witnesses and others who may· be inconvei:ltenced. The convenience of the witnesses, which deserves the greatest considera tion, is ordinarily lost sight of in this class of case. Justice strongly demands that this unfortunate section of the general public com pelled to discharge public duties, usually at loss and inconvenience to themselves should not be ignored in the over-all picture of what will best serve the ends of justice; and it may well be a sound exer cise of discretion in a particular case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross-examine them. But broadly speaking, after all the various factors have been taken into consideration and carefully weighed, the endeavour should 'be to avoid snap decisions and to afford the parties a real opportunity of fighting out their caso::s fairly squarely. The Court must in e\·ery case exercise the discretion given to it. Its hands are not tied by a so-called "ex parte order", and, if it thinks they are tied by rule 7 of Order 9 of the Code, then it is not exercising the discretion which the law says it should, and in ii given case interference may be called for. Held, that the Election Tribunal did not exercise the discretion given to it by law because of a misapprehension that it had none. It was directed tO do so now and to proceed with the further hear ing of the case in accordance with law. Hari Vishnu v. Ahmed Ishaque ([1955] 1 S.C.R. 1104), Durga Shankar Mehta v. Thakur Raghurai Singh ([1955] 1 S.C.R. 267), and .Raj Kru~hna Bose ".· Binod Kanungo ([1954] S.C.R. 913, 918), apphed. Harzram v. Pnbhdas (A.LR. 1945 Sind 98, 102), distin guished. Sewaram v. Misrimal (A.I.R. 1952 Raj. 12, 14), overruled. Venkatasubbiah v. Lakshminarasimham (A.l.R. 1925 Mad. 1274), approved. Balakrishna Udayar v. Vasudeva Ayyar (I.L.R. 40 Mad. -> 1955 Sa11gra111 Singh v. Electio11 Trih1111al, KotaJ,, B!iurey Lal Bay a 4 SUPREME COURT REPORTS [1955] 793), T. M. Ba,.,.et v. African l'roducts Ltd. (A.LR. 1928 P.C. 261, 262) and Sa/1ibzada Zei111<labdi11 Khan v. Sahibzada Ahmed Raza Khan (5 I.A. 233, 236), applied. Case remilfed 10 the Trih1111a!: CIVIL APPELLATE .IURISDIC110N: No. 214 of 1954. Civil Appeal Appeal under Article 133(l)(c) of the Constitu tion of India from the Judgment and Order dated the 17th July 1953 of the High Court of Rajasthan (Bapna and Ranawat JJ.) in Civil Writ Application No. 128 of 1953. R. K. Ras1ogi and Gan pat Rai. for the appellant. R. C. Prasad, for S.l. Chhihhrr. for No. 2. respondent

#1955. March 22. The; Judgment of the Court was delivered by BosE J.-The second respondent Bhurey Lal filed an election petition under section 100 of the Represen tation of the People Act against the appellant Sangram Singh and two others for setting aside Sangram Singh's election. The proceedings commenced at Kotah and after some hearings the Tribunal made an order on 11-12-1952 that the further sittings would be at Udai It was pur from the 16th to the 21st March, 1953. discovered later that the 16th was a public holiday, so on 5-1-1953 the dates were changed to "from 17th March onwards" and the parties were duly noti fied. ' ' .. On the 17th the appellant did not appear nor did any of the three counsel whom he had engaged, the Tribuna I proceeded ex pa rte after waiting 1-15 ·P.M. . " The Tribunal examined Bhurey Lal and two wit nesses .on the 17th. five more witnesses on the 18th ari~ ,on the 19th the case was adjourned till the 20th. "~On the"20th one of the appellant's three counsel, ·Mr. 'Bhartit Raj, ·appeared but was not allowed 2 S.C.R. SUPREME COURT REPORTS 5 take any part in the proceedings because the Tribu- nal said that it was proceeding ex parte at that stage. Sangram Singlr Three more witnesses were then examined. 1955 v. _, t On the following day, the 21st, the appellant made Election Tribunal. an application asking that the ex parte proceedings be Korah, Bhurey Lal set aside and asking that he be allowed to cross-ex- amine those of Bhurey Lal's witnesses whose evidence had already been recorded. BoseJ. Baya The Tribunal _heard arguments and passed order the same day rejecting the application on the ground that the appellant had "failed to satisfy ourselves that there was any just or unavoic; lable reason preventing the appearance of respondent No. l himself or of any of his learned advocates between the I 7th and the I 9th of March. 1953". and it added- "at all events, when para 10 of the affidavit makes it clear that Shri Bharatra.i had already ceived instructions to appear on 17-3-1953 there was I 8th nothing to justify his non-appearance on and 19th of March. I 953. if not. on the I 7th as well". The appellant thereupon filed a writ petition under article 226 of the Constitution in the High Court of Rajasthan and further proceedings before the Tribu nal were stayed. The High Court rejected the petition on 17-7-1953 on two grounds- the Tribunal was ()) "In the first place. authority to decide whether the reasons were sufficient the Tribunal came to or otherwise and the fact that the conclusion that forth by counsel for the petitioner were insufficient cannot be chal lenged in a petition of this nature" and the reasons set • / (2) "On the merits also, we feel no hesitation holding that counsel for the petitioner were grossly negligent in not appearing on the date which had been fixed for hearing. mol'C than two months previ ously". Five months later. on 16-12-1953, the Hieb Court granted a certificate under article 133(l)(c) of Constitution for leave to appeal to this Court. :?-8 SCI IND182 6 SUPREME COURT REPORTS L 1955] 1955 Sangram Singh v. ther the Tribunal was right in refusing appellant's counsel to appear and take part The only question before the High Court was whe- Election Tribunal, proceedings on and after the 20th of March, 1953, and Kotall, Bhnrey Lal the first question that we h~ve to decide is whether , that is sufficient ground to give the High Court jurisdic- ti on to entertain a writ petition under article 226 of the Constitution. That, in our opinion, is no longer res integra. The question was settled by a Bench of seven. Judges of this Court in Hari Vishnu v. Ahmad !shaque(') in these terms: to allow Baya Bore J. "Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an op portunity to the parties to be heard, or violates principles of natural justice". That is exactly the position here. It was urged that that cannot be so "in election matters because of section 105 of the Representation of the People Act of 195 l (Act XL III of 195 )), a sec tion which was not considered in the earlier case. It runs thus: "Every order of the Tribunal made under Act shall be final and conclusive". It was submitted that the It was argued that neither the High Court nor the Supreme Court can itself transgress the law in trying to set right what it considers is an error of law on the part of the Court or Tribunal whose records are under consideration. legislature intended the decisions of these tribunals to be final on all matters, whether of fact or of law, accordingly, they cannot be said to commit ·an error of law when, acting within the ambit of their decide and lay down what the sphere their decisions are absolute, as absolute as the decisions of the Supreme Court in its own sphere. Therefore, it was said, the. only question that is left open for examination under article 226 in the case of an Election Tribunal is whether it acted within scope of its jurisdiction. (1) [1955) I S.C.R. 1104, 1121. jurisdiction, for in law is. . i I I ; 2 S.C.R. SUPREME COURT REPORTS 7 1955 sungram Sillch v. the Elec1io11 Trib1111at, laid Kotah, Blmrey Lat Baya BoseJ. But this, also, is no longer open to question. The point has been decided by three Constitution Benches In Hari Vishnu v. Ahmad Jshaque(') of this Court. the effect of section 105 of tht< Representation of the Court People Act was not c<:msidered, but down in general terms that jurisdiction under article 226 having been conferred by the Constitution, limitations cannot be· placed on it except by the Con- stitution itself: see pages 238 and 242. Section 105 was, however, considered in Durga Shankar Mehta v. Raghuraj Singh(') and it was held that that section cannot cut down or affect the overriding powers of this Court under article l 36. The same rule wa~ ap- in Raj Krusl111a Bose v. Binod plied to article 226 Kanungo and others(') and it was decided that section l 05 cannot take away or whittle down the powers of the High, Court under article 226. Following decisions we hold that the jurisdiction of the High Court under article 226 is not taken away or curtailed by section 105. to act its illegal acts shall become The jurisdiction which articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all Tribunals to see whether they have acted illegally. That jurisdiction cannot be away by a legislative device that purports to confer illegally by enacting a power on a tribunal statute that legal the legal. moment the tribunal chooses to say The legality of .an act or conclusion is something that exists outside and apart from the decision of an in ferior tribunal. which cannot be finally determined or altered by any tribunal of limited ju.risdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative con clusion which is subject to review under articles 226 and J 36. Therefore. the High It is a part of the law of the the jurisdiction of they are (I) (1955] I S.C.R. 1104. 1121. (2) f1955] I S.CR. 267. (3) 1954 S.C.R. 913, 918. 8 SUPREME COURT REPORTS [ 1955] 1955 Sangram Singh V. Election Tribunal, . Kotah, Bhurey Lal Baya Bose J. Courts under article 226 with that of the Supreme Court above them remains to its fullest ·extent despite section 105. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under article 2.26. Their powers are 110 limits can be a11d though purely discretionary placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has e11sued, or is like ly to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. There fore, writ petitions should not be lightly entertained in this class of case. - We now turn to the decision of the Tribunal. The procedure of these tribunals is governed by section 90 of the Act. The portion of the section that is rele vant here is sub-section (2) .which is in these terms: . "Subject to the provisions of this Act and of any rules made thereunder. every election petition be tried by the Tribunal, as nearly as may be, accordance with the procedure applicable under Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits": We must therefore direct our attention to that por tion of the Civil Procedure Code that deals with trial of suits". . 1 " ' Now a code of procedure must be regarded as such. It is procedw,-, something designed to facilitate justice and fort11er its ends: not a penal enactment for puni- shment hnd penalties; not a thing designed to people up. Too kdrnic:d a con st rncti"n uf si:dicms that leaves no room for i·easonable elasticity of inter- ' 2S.C.R. SUPREi\1E COURT REPORTS 9 ' I pretation shou.ld therefore be guarded against vided always that justice is done to both sides) Jest Sa11gram Singh the very means designed for the furtherance of justice be used to frustrate it. (pro 1955 v. Electio11 Tribunal, Kotah, Bhurey Lal Baya Bose!. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men that decisions should not be condemned unheard, that pro- should not be reached behind their backs, should ceedings that affect their lives and· property not continue in ·their absence and that they .should in them. Of not be precluded from participating course, there must be exceptions and where are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. The existence of such a principle has been '1S un doubted, and in any event was condemned workable and impractical by O'Sullivan, J. in Hadram v. Pribhdas('). He regarded it as an indeterminate term "liable to cause misconception" and his views were shared by Wanchoo, C. J. and Bapna, J. in Rajasthan: Sewa Ram v. Misrimal('). But that a law of n_atural justice exists in the sense that a party must be heard in a Court of law, or at any rate be afforded an opportunity to appear and defend himself, unless there is express provision to the contrary, is, we think, beyond dispute. See the observations of the in Balakrishna Udayar v. Vasudeva Privy Council Ayyar("), and especially in T. M. Barret v. African Products Ltd.(') where Lord Buckmaster said "no forms or procedure should ever be permitted exclude the presentation of a litigant's defence". Also Hari Vishnu's case which we have just quoted. In our opinion, Wallace, J. was right in Venkata trials subbiah v. Laksluninarasimham(') "One cardinal principle to be observed by a Court obviously is that a party has a right in holding (I) A.I.R. 19•15 Sind 98. 10~. (3) I.LR 40 Macl. 79.1. ROO. (2) A.J.R. 1952 Raj. 12. 14. (4) A.T.R. 1928 P.C. 261, 262. (5) A.LR. 1925 Mad. I 27J. IO SUPREME COURT REPORTS [1955) 1955 Sa1tz,-am Singh v. Election Tribuna(, .Kotah, Bhurey Lal Baya BoseJ. appear and plead his cause on all occasions when that cause comes on for hearing", and that "It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it". Let us now examine that Code; and first, we will turn to the body of the Code. Section 27 provides "Where a suit has been duly instituted, a sum mons may be issued to the defendant to appear and answer the claim". Section 30 gives the Court power to "(b) issue summonses to persons whose attend ance is required either to give evidence or to produce documents or such other objects as aforesaid". the penalties for default. They are set Then come out in section 32 but they are confined to cases which a summons has been issued under section 30. There is no penalty for a refusal or an omission to appear in response to a summons under section 27. It is true certain consequences will follow if a defendant does not appear and, popularly speaking, those conse quences may regarded as the penalty for non appearance, but they are not penalties in the true sense of the term. They are not punishments which Court is authorised to administer for disregard of its orders. The antithesis that section 32 draws between section 27 and section 30 is that an omission to ap pear in response to a summons under section 27 car ries no penalty in the strict sense, while disregard of a summons under section 30 may entail punishment. The spirit of this distinction must be carried over the First Schedule. We deprecate the tendency of some Judges to think in terms of punishment and penalties properly so called when they should instead be thinking of compensation and the avoidance of in justice to hoth sides. We turn next to the Rules in the First Schedule. It is relevant to note that the Rules draw a distinction between the first hearing and subsequent hearings, • J .. 2 S.C.R. SUPREME COURT REPORTS l l 1955 --- Sangram Sinzh . V. to Election Tribunal, a Kotah, Bhurey Lal Baya Bowl. and that the first hearing can be either (a) for settle ment of issues only, or (b) for final disposal of the suit. First, there is Order V, rule I : " .................. a summons may d the defendant to appear and answer the claim on day to be therein specified". This summons must state whether the hearing is to be for settlement of is~ues only or for final hearing (rule 5). If it is for final hearfog, then (rule 8): . b e issue "it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case". Then comes Order VIII. rule I which expressly speaks of "the first hearing". Order IX follows and is headed "Appearance of parties and consequence of non-ap pearance". to the Now the word "consequence" as opposed word "penalty" used in section 32 is significant. It emphasises the antithesis to which we have already drawn attention. So also in rule 12 the marginal note is "Consequence of non-attendance" and the body of tippear the rule states that the party who does not and cannot show sufficient cause "shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear". The use of "penalty" avoided. scrupulously the word Our attention was drawn to rule 6(2) and it was argued that Order IX does contemplate the imposi tion of penalties. But we do not read this portion of the rule in that light. All that the plaintiff has to do here is to pay the costs occasioned by the postpone ment which in practice usually means the cost of a fresh summons and the diet money and so forth for such of the witnesses as are present; and these costs the plaintiff must pay irrespective of the result. Rule 1 of Order IX starts by saying- "On the day fixed in the summons for the de- fendant to appear and answer ............................ .. 12 SUPREME COURT REPORTS [ 1955] 1955 Sa11gra1n Singh V, Election Trihunal, Kntoh, Bhure.v Lal Bay a Bose J. and the rest of the rules in that Order are consequen tial on that. This is emphasised by the use of the word "postponement" in rule 6 (I) (c), of "adjourn ment" in rule 7 and of "adjournment" in rule L Therefore, we reach the position that .Order IX, rule 6(1 )(a), which is the rule relied on, is confined to the first hearing of the suit and does not per se apply to subsequ\:nt hearings: see Sahibzada Zeinulahdin Khan v. Sahihzada Ahmed Raza Khan('). Now to analyse rule 6 and examine its bearing on the first hearing. When the plaintiff appears and the defendant does not appear when the suit· is called on for hearing, if it is proved that the summons was duly served- "(a) ........................ the Court may proceed ex parte". The whole question is, what do these words mean? Judicial opinion is sharply divided about thi.s. On the one side is the view propounded by Wall ace, J. in Venkatasuhbiah v. Lakshminarasimham(') that ex parte merely means in the absence of the other party, and on the other side is the view of O'Sullivan, J., in Hariram v. Prihhdas(') that it means that the Court is till the at liberty to proceed without the defendant termination of the proceedings unless the defendant shows good cause for his non-appearance. The maining decisions, and there are many of them, take one or the other of those two views. In our opinion, Wallace, J. ·and the other. Judges who adopt the same line of thought, are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no pro ceeding in a Court of law should be conducted to the detriment of a person in his· absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex then, (I) 5 I.A. 233, 236. (2) A.I.R. 1925 Mad. 1274. 13) A.1.R. 1945 Sind 98. 102. 2 S.C,R. SUPREME COURT REPORTS 13 1955 partc order. Of course the fact .that it is proceeding ex parte will be recorded in the minutes of its proceedings Sa11gram Singh but that is merely a statement of the fact and is not an order made against the defendant in the sense of Election Tribunal, an ex parte decree or other ex parte order which the Kotah, Bhurey L.al Court is authorised to make. All that rule 6 (l) (a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not to proceed have done without this authority, namely in the absence of one of the parties. The contrast in language between rules 7 and 13 emphasises this. BoseJ. Baya v. Now. as we have seen, the first hearing is either for the settlement of issues or for final hearing. If it is only for the settlement of issues, then the Court cannot pass an ex /;arte decree on that date because of proviso to Order XV, rule 3(1) which provides that can only be done when "the parties or their pleaders are present and none of them objects". On the other hand, if it is for final hearing, an ex parte decree can be passed, and if it is passed, then Order IX. rule 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside. Contrast this with rule 7 which does not require the setting aside of what is common ly. though erroneously, known as "the ex pa rte order". No order is contemplated by the Code and therefore no order to set aside the order is contemplated either. But a decree is a command or order of the Court and so can only be set aside by another order made and recorded with due formality. Then. comes rule 7 which -provides that if at an adjourned hearing the defendant anpears and shows good cause for his "previous non-appearance", he can be heard in answer to the suit "as if he had appeared on the day fixed for his appearance". This cannot he read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. 3·-R SCT IND/82 14 SUPREME COURT REPORTS [1955] v. 1955 We turn next to the adjourned hearing. That is Sangram Singh dealt with in Order XVII. Rule l (]) empowers the Court to adjourn the hearing and whenever it does so Election Tribunal, it must fix a day "for the further hearing of the suit", Koiah, Bhurey Lal except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court con that a siders, for reasons to be recorded in writing, further adjournment is necessary. Then follows rule 2- Baya Bo.<eJ. "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf bv Order IX or make such other order as it thinks fit''. Now rule 2 only applies when one or both of the parties do not appear on the day fixed for the adj{)lm1- ed hearing. In that event the Court is thrown back to Order IX with. the additional power to make "such order as it thinks fit". When it goes back to Order IX it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at. the first hearing, that is to say, the right to proceed ex parte is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to Order IX, rule 6. It is not a mortgaging of the future but only applies to particular hearing at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedil)gs simply because he did not appear on the first or some other hearing. But though he has the right to appear at an ad journed hearing, he has no right to set back the hands of the clock. Order IX, rule 7 makes that clear. There fore, unless he can show good cause, he. must accept to proceed all that has gone before and be content from_ the stage at which he comes in. But what exactly does that import? To determine that it will be neces sary to hark back to the first hearing. ' 2 S.C.R. SUPREME COURT REPORTS 15 We have already seen that when a s11mrcons is issued to the defendant it must hearing is for the settlement of issues only or for the final disposal of the suit (Order V, rule 5) event, Order VIII, rule I comes into play and if defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply- state whether 1955 sangram Singh v. Baya Bose J. Jn either Election Tribunal, the Kotah, Bhurey Lal "the Court may pronounce judgment against him, or make such order in relation to the suit as thinks fit' (Order VllL rule JO). This invests the Court \\(.ith the widest possible dis cretion and enables it to see that justice is done ho!l1 sides; and also to witnesses if they are present: a matter on which we shall dwell later. We have seen that if the defendant does not ap pear at the first hearing, the Court can proceed ex partc. which means that it can proceed without a writ ten statement; and Order IX, rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a writ ten statement should have been put in, the consequ ences entailed bv Order VIII. rule IO inust be suffered. What those consequences should be in a given case· is for the Court in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice: an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, ends of justice may call for more drastic action. Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and others who may be in- convenienced. It is an unfortunate fact that the con venience of the witness is ordinarily lost sight of in this class of case and yet he is t'.~e one that deserves J ~ • 16 SUPREME COURT REPORTS [I 955] v. 1955 Baya BoseJ. for days on end. He the greatest consideration. As a rule, he is not parti- sa11grum Singh cularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to Election Tribunal, abandon because a Court orders him to come to the Kotah, Bhurey Lal assistance of one or other .of l he parties- to a dispute. His own business has to suffer. He may have to leave his family and his affairs usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on foot. And when he gets there, there are no arrangements for him. He is not given accommoc.lation; and when he reaches the Court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed the heat of summer. wet and miserable in the rains: and then, after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come again another day. Justice strongly demands that this unfortunate section of the general public compelled to discharge public duties, usually at should not be and inconvenience to ignored in the over all picture of what will best serve the ends of justice and it may well be a sound exercise of discretion in a given case to refuse an adjournment and permit the plaintiff to examine the witnesses pre to cross-examine sent and not allow the defendant It all them, still less to adduce his own evidence. depends on the particular case. But broadly speak ing, after all the various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford liti gants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compen the Court has sation in many cases and terms it can almost unlimited discretion about the impose provided always the discretion judicially exercised and is not arbitrary. themselves. in others In the Code of 1859. there was a provision (section 119). which said that-.. . . '~·No appeal shall lie from a judgment pass7,d l'Y par~e)~ainst a defendant wh?. has not appeared : 2 S.C.R. SUPREME COURT REPORTS 17 The Privy Council held in Sahibwda Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan(') that this only applied to a defendant who had not appeared at all at any stage, therefore, if once an appearance was Eiec1io11 Trib1111at, entered, the right of appeal was not taken away. One Kotah, Bhurey Lal of the grounds of their decision was that- 1955 Su11gra111 Singh v. Baya J '"The general ruk is that an appeal lies to the High Court from a decision of a civil or subordinate Judge, and a defendant ought not to be deprived of the right of appeal, except by express words or neces sary implication". Bo~eJ. The general rule, founded on principles of natural justice, that proceedings in a Court of justice should not be conducted behind the back of a party in the absence of an express provision to that effect is no less compelling. But that apart. It would be anomal ous to hold that the efficacy of the so-called ex parte order expends itself in the first Court and that there aft~r a defendant can be allowed to appear in the ap pellate Court and can be heard and can be permitted' to urge in that Court the very matters he is shut. out from urging in the trial Court; and in the event that the appellate Court considers a remand necessary he can be permitted to do the very things he was pre cluded from doing in the first instance without getting the e.>;: parte order set aside under Order IX, rule 7. Now this is not a case in which the defendant with whom we are concerned did not appear at the first hearing. He did. The first hearing was on 11-12-1952 at Kotah. The appellant (the first defendant) appeared through counsel and filed a written statement. Issues were framed and the case was adjourned till the 16th March at Udaipur for the petitioner's evidence alone from the 16th to the 21st March. Therefore. Order in terms. But we IX, rules 6 and 7 do ·not apply have been obliged to examine this order at length be cause of the differing views taken in the various High Courts and because the contentiori is that Order XVII, rule 2 throws one back to the position under Order IX, rules 6 and 7. and there. according to one set of (1) 5 I.A. 233. • 18 SUPREME COURT REPORTS [1955] IY55 S1111irr11111 Singh . v. Elec1io11 Trih1111at, Kota/I, Bl111rey Led 7. But that is by no means the case. /Hirte "order" views, the position is that once an ex take fur- is "passed" against a defendant he cannot ther part in the proceedings unless be gets ''order" set aside by showing good cause under rule Bay a BoseJ. ' If the defendant does not appear at the adjourned hearing (irrespective of whether or not he appeared at the first hearing) Order XVII, rule 2 applies and the Court is given the widest possible discretion either "to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit", The point is this. The Court has a discretion which Its hands are not tied by the so it must exercise. called ex (Hirte order; and if it thinks they are ti~d by Order IX, rule 7 then it is not exercising the discretion which the law says it should and, in a given case, in- terference may be called for. · The learned Judges who constituted a Full Bench (Tulsha Devi v. Sri of the Lucknow Chief Court Krishna(')) thought that if the original ex parte order did not enure throughout all future hearings it would be necessary to make a fresh ex parte order at each succeeding hearing. But this proceeds on the mistaken assumption that an ex pane order is required. The order sheet, or minutes of the proceedings, has to show which of the parties were present and if a party is absent the Court records that fact and then records whether it will proceed ex parte against him, that to say, proceed in his absence, or whether it will ad journ the hearing; and it must necessarily record this fact at every· subsequent hearing because it has to record the presence and absence of the parties at each hearing. With all due deference to the learned Judges who hold this view, we do not think this is a grave or a ·sound objection. A much weightier consideration is that the plain tiff may be gravely prejudiced in a given case because, as the learned Rajasthan Judges point out, and as O'Sullivan, J. thought, when a case proceeds ex parte, .. (1) AJ,R. 1949 Oudh 59. 2 S.C.R. SUPREME COURT REPORTS 19 :t I 1955 v. · Baya BoseJ. the plaintiff does not adduce as much evidence as he would have if it had been contested. He contents Sangram Si11gh himself with leading just enough to establish a prima facie case. Therefore, if he is suddenly confronted Election Trib1111al, with a contest after he has closed his case and the Kotah. Bhurey Lal defendant then comes forward with an army of wit- nesses he would be taken by surprise and gravely pre- judiced. That objection is, however, easily met by the wide discretion that is vested in the Court. If it has reason to believe that the defendant has by his conduct misled the plaintiff learned Judges apprehend, then. it might be a sound exercise of discretion to shut out cross-examination the defendant's and the adduction of .evidence on part and to allow him only to argue at the stage when arguments are heard. On the other hand, cases may occur when the plaintiff is not. and ought not to be, If these considei; ations are to weigh. misled. surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circum- stance into consideration and do what seems best suited to meet the ends of justice in the case before it. into doing what In the present case, we are satisfied that the Tribu nal did not exercise its discretion because it ·consi dered that it had none and thought that until the ex /Hirte order was set aside the defendant could not appear either personally or through counsel. We agree with the Tribunal, and with the High Court, that no good cause was shown and so the defendant had no right to be relegated· to the position that he would have occupied if he had appeared on 17-3-J 953, b!-lt that he had a right to appear through counsel on 20-3-1953 and take part in the proceedings from the stage at which they had then reached, subject to such terms and conditions as the Tribunal might think fit to impose, is, we think, undoubted. Whether he should have been allowed to cross-examine the three witnesses who were examined after the appearance of his coun sel, or whether he should have been allowed to adduce evidence, is a matter on which we express no opinion, for that has to depend on whatever view the Tribu nal in a sound exercise of judicial discretion will • ' ) ' . .# /955 Sa11gra111 ..5i11{!/J v. Ele<·lion Tribunal, Kota/1, Blmrey Lat' Bay a Bn:eJ. 20 SUPREl\llE COURT REPORTS [ 1955] choose to take of the circumstances of this panicular case, but we can find no justification for not at least allowing counsel to argue. Now the Tribunal said on 23-3-1953- "The exact stage at which the case had reached before us on the 21st of March 1953 was that under the clear impression that respondent No. l had failed to appear from the very first date of the final hearing when the n parfr order was passed, the petitioner must have closed his case after offering as little evi dence as he thought" was· just necessary to get his petition disposed of ex parte. Therefore, to allow the respondent No. 1 to step in now would certainly handi cap the petitioner and would amount to a bit of justice which we can neither contemplate nor con done". But this assumes that the petitioner was misled and closed his case "aftei: offering as little evidence as he thought was just necessary to get his petition disposed It does not decide that that was in fact of ex parre". the case. If the defendant's conduct really gave rise to that impression and the plaintiff would have adduced more evidence than he did, the order would be un exceptional but until found to be the fact a that is mere assumption would not be a sound basis for the the Court must exercise in kind of discretion which this class of case after carefully weighing all the rele vant circumstances. We, therefore, disagreeing with the High Court which has upheld the Tribunal's order, quash the order of the Tribunal and direct it to exer cise the discretion vested in it by law along the lines In doing so the Tribunal will we have indicated. consider whether the plaintiff was in fact misled or could have been misled if he had acted with due diligence and caution. It will take into consideration the fact that. the defendant did enter an appearance and did file a written statement and that issues were framed in his presence; also that the case was fixed for the "petitioner's" evidence only and not for that of the appellant; and that the petitioner examined all the witnesses he had present on the I 7th and the I 8th and did not give up any of them; that he was given •• • 2S.C.R. SUPREME COURT REPORTS 21 ( 1955 an adjournment on 19-3-1943 for the examination of witnesses who did not come on that date and that he Sungram Singh examined three more on 20-3-1953 after the defendant had entered an appearance claimed the right to plead; also whether, when appellant's only protest was against the hearings at Udaipur on dates fixed for the ·petitioner's evidence alone, it would be. legitimate for. a party acting with due caution and diligence to assume that the other side had abandoned his right to adduce his own evi- dence should the hearing for that be fixed at some other place or at some other date in the same place. through counsel and Election Tribunal, the Kotah, Bhurey Lal Baya BoseJ. v. The Tribunal will also consider and determine whether it will be proper in the .circumstances of this case to allow the appellant to adduce his own evidence. The Tribunal will now reconsider its orders of the 20th, the 21st and the 23rd of March 1953 in the light of our observations and will proceed accordingly. The records will be sent to the Election Commis sion with directions to that authority to reconstitute the Tribunal, if necessary, and to direct it to proceed with this matter along the lines indicated' above. There will be no order about costs. 4- 8(SCI ND/8Z