Law: Civil Procedure Code (V of 1908)

Section: 151,27,13

  (a) Civil Procedure Code (V of 1908)-----   ----O. XLIII, 1 (d) "Rejected" distinguished from "dismissed".   The word `rejected' implies an order on merits, while the word `dismissed' implies an order passed not on merits, but on account of the non-appearance of a party. (b) Civil Procedure Code (V of 1908)-----   ------O. XLI, r. 27-Matter dismissed in default-Appellate Court whether can allow additional evidence.   Order XLI, rule 27, empowers Appellate Courts, in certain limited cases, to record additional evidence i.e., evidence in addition to what is already on record, and that too only in that case, where the evidence already on record, is found to be either insufficient or not clear enough to enable them to give judgment. In a case where a matter is dismissed in default, there could be no evidence. The question that an appellate Court will be called upon to decide, will be, whether or not, the appellant had a sufficient cause for his non-attendance, and the law does not permit him to lead evidence before it.   (c) Interpretation of Statute----   ---Absurdity-Presumption against. (d) Civil Procedure Code (V of 1908)-------   -------Order IX, r. 13 and S. 151-Ex-parte decree-Petition to set aside decree dismissed in default-Petition to restore application dismissed in default call be restored under S. 151-No appeal lies under Order XLIII (1) (d):   Ganesh Prasad v. Bhagelu Ram and others A I R 1925 All. 773 ; Ptambar Lal v. Dodee Singh A I R 1924 All. 503 ; Sarat Krishna Bose v. Biswaswar Mitra and others A I R 1927 Cal. 534 ; Aland Lal v. Jetha Ram A I R 1929 Lah. 878 and U Be That v, U OP Thaung A T R 1933 Rang. 406 ref.   (e) Civil Procedure Code (V of 1908)-----   -----S. 151-When applicable.   Once the justness of the cause is recognised, the provision of section 151 should be called in aid without any hesitation. Muhammad Fazil for Appellant.     Dates of hearing : 7th, 9th and 22nd October 1958.     JUDGMENT   On 7-12-1957 the Senior Civil Judge of Quetta passed an ex parte decree against the respondent. During the execu tion…