N.H. Bhagwati JUDGMENT
M.C. Chagla, C.J.
(1) This is an appeal from an order of Mr. Justice Tendolkar who refused to set aside an ex-parte decree passed against the defendant. The decree was passed in a running down action. The suit was filed on October 14, 1947, and the summons was served upon the defendant by substituted service on December 6, 1947. Messrs. Mulla & Mulla filed their appearance on behalf of the defendant, but no written statement was filed, and the suit appeared before the learned Judge for hearing on June 27, 1951, and as the defendant was absent, an ex-parte decree was passed. A motion was taken out by the defendant on July 26, 1951, to set aside this ex-parte decree, and as mentioned before the learned Judge dismissed the motion.
(2) Now, dealing first with the narrow question as to whether there was any sufficient cause for the non-appearance of the defendant on June 21, 1951, we entirely agree with the view taken by the learned Judge below that there was not sufficient cause. Although Messrs. Mulla & Mulla were on the record, no written statement was filed and no proceedings were taken in the action by the defendant. Messrs. Mulla & Mulla were not even instructed to apply for an adjournment on June 27, 1951. The defendant has suggested that he was a displaced person, that he had to go from India to Pakistan from time to time in order to liquidate certain of his properties, and that thereafter he was in Nandurbar plying a motor lorry. But, as the learned Judge has pointed out, all this did not prevent him from keeping in touch with the suit of which he had notice and with regard to which he had actually instructed solicitors who were to act for him in that suit. The position might have been different if the defendant was unrepresented, but as he was represented, the failure on the part of the defendant to give proper instructions to his solicitors cannot possibly constitute a sufficient cause for his absence on June 27, 1951.
(3) But a more important and more interesting question has been raised by Mr. Maneksha. In this case an Insurance Co. by the name of the Unique Motor and General Insurance Co. is concerned. The Motor Vehicles Act casts a liability upon an Insurance Co. which insures a motor vehicle and issues a certificate of insurance to the owner of the motor vehicle. The liability is cast under Section 96(1) of the Motor Vehicles Act and the liability is that the insurer- shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. Now, before this liability can be imposed upon the Insurance Co., a condition precedent has got to be satisfied, and that condition precedent is referred to in Sub-section (2) of Section 96, and the condition precedent is :
"No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings...."
This notice was served by the plaintiff upon the Insurance Co. on June 21, 1951. Mr. Maneksha's contention is that although the defendant might not have been able to show sufficient cause for his absence on June 27, 1951, there is sufficient cause as far as the Insurance Co. is concerned why it was not in a position to defend the action through the defendant on June 27, 1951........