Sangram Singh v Election Tribunal, Kotah (1955)

This is the case that decides what an ex parte order actually means. On one view, once a court has directed that it will proceed ex parte, the defendant is shut out of the proceedings for good unless he first has that order set aside under Order IX Rule 7. On the other, ex parte means no more than in the absence of the other party, so that a defendant who turns up later may take part from that stage. The Supreme Court adopted the second view.

It also contains the single most quoted passage in Indian civil procedure on the spirit in which the Code is to be read — that a code of procedure is something designed to facilitate justice, and that too technical a construction of sections which leaves no room for reasonable elasticity of interpretation should be avoided.

The second respondent, Bhurey Lal, filed an election petition under s. 100 of the Representation of the People Act against the appellant, Sangram Singh, and two others, to set aside Sangram Singh's election. Proceedings began at Kotah. At the first hearing on 11 December 1952 the appellant appeared through counsel and filed a written statement; issues were framed, and the case was adjourned for the petitioner's evidence to be taken at Udaipur between 16 and 21 March 1953. The 16th turned out to be a public holiday, so on 5 January 1953 the dates were changed to from the 17th March onwards, and the parties were notified.

On the 17th neither the appellant nor any of his three counsel appeared. After waiting until 1.15 p.m. the Tribunal proceeded ex parte. It examined Bhurey Lal and two witnesses that day, five more on the 18th, and adjourned on the 19th to the 20th. On the 20th one of the appellant's counsel, Mr Bharat Raj, appeared, but was not allowed to take any part, because the Tribunal said it was proceeding ex parte at that stage. Three more witnesses were then examined.

On the 21st the appellant applied to have the ex parte proceedings set aside and to be allowed to cross-examine the witnesses already examined. The Tribunal rejected the application, holding that he had failed to satisfy it that there was any just or unavoidable reason preventing his appearance or that of any of his three advocates between the 17th and the 19th of March 1953, and adding that since one counsel had already received instructions to appear on the 17th there was nothing to justify his non-appearance on the 18th and 19th.

The appellant moved the Rajasthan High Court under Art. 226. The High Court rejected the petition, holding among other things that it was for the Tribunal to decide whether the reasons were sufficient.

1. Does Order IX Rule 6(1)(a) apply to hearings after the first hearing? 2. Once a court has said it will proceed ex parte, is the defendant excluded from all further proceedings until that order is set aside under Order IX Rule 7? 3. What is the court's power where a party is absent at an adjourned hearing?

The Tribunal was wrong. Although no good cause had been shown, so that the appellant had no right to be put back into the position he would have occupied had he appeared on 17 March 1953, he had an undoubted right to appear through counsel on 20 March 1953 and to take part in the proceedings from the stage which they had then reached, subject to such terms and conditions as the Tribunal might impose. Whether he should be allowed to cross-examine the three witnesses examined after his counsel appeared, or to adduce evidence, was left to the Tribunal's discretion; but there was no justification for refusing even to allow counsel to argue.

Consequence, not penalty. The Code draws a deliberate distinction. Section 32 contrasts an omission to appear in response to a summons under s. 27, which carries no penalty in the strict sense, with disregard of a summons under s. 30, which may entail punishment. Certain consequences follow if a defendant does not appear, and popularly they may be regarded as penalties, but they are not punishments which the court is authorised to administer for disregard of its orders. The judgment deprecates the tendency of some judges to think in terms of punishments and penalties when they should be thinking of compensation and the avoidance of injustice to both sides.

That distinction is carried into the First Schedule. Order IX is headed Appearance of parties and consequence of non-appearance; the marginal note to Rule 12 is Consequence of non-attendance; the word penalty is scrupulously avoided.

Order IX applies to the first hearing. Order IX Rule 1 begins with the day fixed in the summons for the defendant to appear and answer, and the rest of the Order is consequential on that. Order IX Rule 6(1)(a) is therefore confined to the first hearing and does not of itself apply to subsequent hearings.

What happens at an adjourned hearing. If the defendant does not appear at an adjourned hearing — whether or not he appeared at the first hearing — Order XVII Rule 2 applies, and gives the court the widest possible discretion either to dispose of the suit in one of the modes directed by Order IX or to make such other order as it thinks fit. The essential point is that the court has a discretion which it must exercise; its hands are not tied by the so-called ex parte order, and a court which thinks they are tied by Order IX Rule 7 is not exercising the discretion the law requires of it.

No fresh ex parte order is needed at each hearing. The Full Bench view in Tulsha Devi v Sri Krishna (1949) — that if the original ex parte order did not endure through all future hearings a fresh one would be needed each time — proceeds on the mistaken assumption that an ex parte order is required at all. The order sheet records which parties were present; where a party is absent the court records that fact and whether it will proceed in his absence or adjourn, and it must record this at every hearing in any event.

The plaintiff's legitimate concern, and the answer to it. A real objection is that when a case proceeds ex parte the plaintiff leads only enough evidence to establish a prima facie case, and would be gravely prejudiced if suddenly confronted by a contest after closing his case. The answer is the court's wide discretion. If the court believes the defendant has by his conduct misled the plaintiff, it may be a sound exercise of discretion to shut out cross-examination and evidence and to allow him only to argue. Where the plaintiff was not and ought not to have been misled, a different order is appropriate. The sounder rule is to leave the court with an unfettered discretion.

The right of appeal, by analogy. Under s. 119 of the Code of 1859 no appeal lay from a judgment passed ex parte against a defendant who had not appeared. The Privy Council in Zeinulabdin Khan v Ahmed Raza Khan held that this applied only to a defendant who had not appeared at all at any stage, so that once an appearance was entered the right of appeal survived; a defendant ought not to be deprived of a right of appeal except by express words or necessary implication. The general rule founded on natural justice — that proceedings should not be conducted behind a party's back in the absence of an express provision — is no less compelling. It would be anomalous to hold that the ex parte order spends its force in the first court, so that the defendant may urge in the appellate court the very matters he was shut out from urging at the trial.

The court's practical concern. The judgment is careful to weigh the position of witnesses, who attend at loss and inconvenience to themselves, wait in verandahs or under trees, and are then told to come another day. Refusing an adjournment and permitting the plaintiff to examine the witnesses present may in a given case be a sound exercise of discretion. Broadly, the endeavour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely; costs will be adequate compensation in many cases.

For a question on Order IX, use this case for three propositions: Order IX Rule 6 governs the first hearing; Order XVII Rule 2 governs default at an adjourned hearing and confers a wide discretion; and an ex parte order does not exclude the defendant from the proceedings thereafter — he may appear and take part from the stage the proceedings have reached, though he cannot undo what has already been done unless he shows good cause under Order IX Rule 7.

For a question on the interpretation of the Code generally, use the consequence-and-not-penalty distinction, and the warning against thinking in terms of punishment where the Code speaks of compensation and the avoidance of injustice.

The appellant lost on good cause. The court agreed with both the Tribunal and the High Court that no good cause was shown, and so he had no right to be restored to the position he would have occupied had he appeared on the 17th. What he won was the smaller and more important right: to come in on the 20th and go forward from there. Keep the two apart in an answer.