P L D (PLP)

3. The authorities mentioned by the learned Additional District Judge are :‑ (1) Lakshmi Ammul v. Devadasi Nayadu and others A I R 1927 Mad. 1114. (2) Sri Kr ishan Saigal v. Arjan Singh A I R 1936 Pesh. 1. (3) Mathai Mathu v. Kutti Kunju Kovilamrnu Thanka Kovi lamma A I R 1953 Tra‑Co.

416. In the first of these cases, it was observed that a defendant against whom the ex pane decree has been passed and who has applied to set aside the decree and failed in getting relief is not entitled to raise the same point in the appeal against the decree. The judg ment itself is very brief and relies on a previous ruling of the Madras High Court, namely B. C. Asethu v. Kesavayya ((1920) 39 M L J 697). A perusal of that authority shows that the learned Judges were influenced by considerations of res judicata, and they were of the view that there can be no reason why adjudication on an appli cation under Order IX, rule 13, C. P. C. should not be conclusive against the applicant for the purpose of any subsequent appeal.

4. In the Peshawar case, relied upon by the learned Addi tional District Judge, the same principle was elaborated, and the relevant observations may be reproduced as follows :‑ "The . . . . . question can be solved by applying the principle of finality, known as constructive res judicata. In my opinion, a defendant who has applied under Order IX, rule 13, Civil Procedure Code, for setting aside a decree on the ground that proper service has not been carried out and has failed, is barred from agitating the same point later in an appeal from that decree, or in a petition for revision against the order passing the decree. The order of the Court will stand in his way, conversely, a defendant, who has failed in an appeal or revision on' that point cannot subsequently have recourse to proceedings under Order IX, rule 13, Civil Procedure Code for decision on it."

5. In the Travancore‑Cochin case, the same view was reiterated, and it was observed that if the ground for the relief by way of appeal is the ground on which the first relief was sought (that is, by means of an application under Order IX, rule 13, C. P. C.) and was not obtained, then the result in the appeal should be the same as that in the other, because, so far as the scope of the proceedings under Order IX, rule 13 is concerned, the order passed concludes the question and it is not open to the defendant to agitate that question afresh in an appeal presented by him against the decree.

6. It will thus be seen that in all the authorities referred to by the learned Additional District Judge and relied upon on behalf of tire respondent, the principle laid down is that if an application for setting aside the ex pane decree under Order IX, rule 13, C. P. C. has been decided on merits and the grounds mentioned therein have been adjudicated upon, then it will not be open to that petitioner to agitate the same grounds in an appeal against the ex parte decree. The question is whether in the present case the application under Order IX, rule 13, C. P. C. filed by the appellant was decided on merits with the result that the decision should operate as a bar against the appeal filed by her before the learned Additional District Judge. I think the answer is clearly in the negative. It is common ground between the parties, and is clearly stated in the judgment of the learned Additional District Judge, that the appellant's application under Order 1X, rule 13, C. P. C. was dismissed as time‑barred. Now, one of the principles of res judicata is that the matter or issue subsequently raised should have been heard and finally decided in the earlier suit or proceedings. It is well settled that the dismissal of a suit on mere technical grounds does not amount to a final hearing‑' and decision of that suit or matter. No authority to the contrary has been cited by the learned counsel for the respondent. It is thus clear that in the present case the appellants application was not finally heard and decided on merits, with the result that its dismissal on the ground of limitation alone cannot stand .in the way of the present appeal. I consider, therefore, that the learned Additional District Judge should have gone into the merits of the appeal preferred before him.

7. I have now heard the parties on the merits of this appeal. I find that in the grounds of appeal nothing has at all been brought out which would constitute sufficient cause for the absence of the appellant or her counsel from the hearing of the suit on 6th January 1958, or 7th January 1958. The only ground put forward for the absence of the learned counsel is that he was under some misunderstanding as to the correct date of hearing. The learnd counsel himself has not taken the trouble of filing any affidavit in this behalf or of producing his case diary to show as to how the misunderstanding had crept in. Further, there is no explanation at all regarding the absence of, the appellant herself, except a statement that she is a purdanashin lady. This statement is not accepted ny the learned counsel for the respon dent, who has asserted that the lady has appeared in person in Court in the other connected suit to make a statement, and, therefore, the mere fact that she is described as a purdanashin lady does not constitute a sufficient cause for her absence. The !earned counsel for the appellant is not in a position to contradict this assertion made on behalf of the respondent. The learned counsel for the appellant, however, has stated that the appellant's counsel did appear in the trial Court on 7th January 1958, in the connected suit for dissolution of marriage filed by the appellant. That may be so, but that does not affect the fate of the present appeal. It seems to me that the appellant has not succeeded in making out a satisfactory case for setting aside of the ex parse decree.

8. Finally, it may also be noticed that the ex parte decree was passed on the basis of an affidavit of the respondent, and this has not been controverted. For all these reasons I see no force in the present appeal, which is hereby dismissed with costs. K. M. A. Appeal dismissed.