AMERICAN FURNISHING HOUSE Vs. UDAT RAM BHURTI

JUDGEMENT

(1.) The question as to whether ths proviso to sub-section (1) of section 17 of the Provincial Small Cause Courts Act (IX of 1887) (hereinafter referred to as the Act) applies to an application filed for setting aside an ex-parts decree made by the High Court in a revision petition under section 25 of the Act, arises for consideration in this case. It has arisen in the following circumstances:-

(2.) Messrs American Furnishing House and Hari Das, plaintiffs filed a suit for recovery of Rs. 922/8/3 against Udai Ram Bhurji in the Court of Small Causes, Delhi. The suit was contested by the defendant and was dismissed by the Additional Judge Small Causes Court, Delhi on 11th April, 1959. The plaintiffs thereupon filed a revision-petition under section 25 of the Act to challenge the decision of the Additional Judge Small Causes Court. The revision of the petitioner came up for hearing before my Lord the Chief Justice on 26th February, 1965. At the time of the hearing the plaintiffs were represented by Mr. G.L. Srivastava but no one appeared on behalf of Udai Ram Bhurji defendant. The learned Chief Justice accepted the revision-petitioin and granted a decree for recovery of Rs. 922/8/3 with costs in favour of the plaintiffs against the defendant.

(3.) The same day application under Order 9, Rule 13 of the Code of Civil Procedure was filed on behalf of the defendant. It was stated that the defendant attended with his counsel at about 10 45 a.m. and learnt that the case had been heard ex parts. According to the defendant, his absence at the hearing of the revision-petition was due to misunderstanding as he thought that the revision-petition would not come up for hearing before 10.45 a.m. as there were six motion cases and six regular cases above the revision-petition on the cause list of that day Prayer was, accordngly, made for setting aside the ex-parte decree and the hearing of the revision-petition on merits in the presence of the defendant