ARJUN SINGH Vs. MOHINDRA KUMAR

JUDGEMENT

(1.) This is an appeal by special leave filed by a defendant whose application under O. IX. R. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by res judicata.

(2.) To appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant - who will hereafter be referred to as the appellant - and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750/- on the basis that she and the appellant were partners and by an arrangement between them he agreed to pay her Rs. 150/- per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being common ground that Phula Kuer was the owner thereof. While there two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to. Rup Chand Jain died pending the appeal in the High Court and is now represented by his heirs who have been brought on record. It would however be convenient to refer to the respondents as the plaintiffs.

(3.) Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs. 150/- per month. This share of profits it was alleged, had been paid to her up to October 14, 1950 and that thereafter the appellant failed to pay the same. The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs. 4,200/- was due to him. Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs. 150/- per mensem. The plaintiff also claimed that he was entitled to evict the appellant from the premises. In the result, the reliefs claimed in the suit were a money-decree for Rs. 9,390/- on account of the items we have set out, and (2) eviction from the premises where the business was being carried on. Having regard to the contentions of the parties in the three suits, all of them were transferred by the District Judge, to the Court of the Second Civil Judge, Kanpur on August 4, 1956, and on August 23, 1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be consolidated for joint hearing, the evidence led in suit 134 of 1956 being treated as evidence in the other suit as well. On October 10, 1956 the appellant filed his Written Statement to suit 134 of 1956 in which he put forward the case in which he had already been asserting viz., (1) absence of any partnership relationship between himself and Phula Kuer, and (2) that he was in possession as a tenant and could not be evicted because the requisite statutory conditions to enable the plaintiff to claim eviction, were not satisfied. Needless to add that there were several other defences which he urged to which it is unnecessary to refer. Thereafter there were questions raised as regards the adequacy of the court-fee paid by the plaintiff in suit 134 of 1956, applications by the plaintiff to amend the plaint etc. These took place during the year 1957. The issues were settled on February 28, 1958. We can pass over what transpired in the early part of 1958. Both the parties were attempting to effect a compromise and for that purpose the hearing was adjourned but the compromise was not finalised, and finally, on May 24, 1958 a joint application was made by the plaintiff and the appellant that two months' time may be granted to them to arrive at a settlement and that the trial which was fixed for May 28, 1958 may be adjourned for that purpose. The Court, however, refused this application for the reason that the suit for the fixation of rent was of the year 1953. On the 28th there was again another application for adjournment and the Court adjourned the trial by one day and fixed it for May 29, 1958, the order stating "If no compromise is filed the case would be taken up for final hearing". On 29th the plaintiff was present but the appellant was absent and the latter's Counsel who was present reported that they had no instructions to conduct the case. Thereupon the court passed an order in suit 134 of 1956 in these terms: