SEBASTIAN JAYASEELAN Vs. REVATHY ENTERPRISES

JUDGEMENT

(1.) The plaintiff in O.S. No. 534/96 of the Second Additional Sub Court, Ernakulam, is aggrieved by the order passed in I.A. No. 2886/98 filed by the defendant whereby the said application was allowed and the judgment and decree passed in the suit on 17 7.1998 was set-aside invoking powers under Order IX Rule 13 of the Code of Civil Procedure.

(2.) The learned Counsel for the petitioner placing reliance on the decision in Prakash Chander v. Janaki Manchanda, pointed out that Order IX Rule 13 will have no application in the case where the defendant was physically present at the time when the case was taken up for disposal and that the provision will have application only where the case is decided or taken up for decision in the absence of the defendant. The learned Counsel also points out with reference to the facts of this case that on 16 7.1998 both parties were present ready to proceed with the trial of the suit as scheduled as announced in the special list and that protesting against the disallowance of certain questions put to the plaintiff by the defence Counsel during cross-examination, he adopted an attitude of non-co-operation with regard to the further proceedings and actually ignored the further proceedings. The Counsel also points out that on the unilateral stoppage of cross-examination of the plaintiff by the defence Counsel the Court called upon the defence to examine the defence witnesses and that there was refusal to do so. Therefore the Court proceeded with the suit and on the very next day passed the judgment on the merits Such decision, according to the learned Counsel for the petitioner, is a decision under Order XVII Rule 3(e) of the C.P.C. which can only be appealed against and no petition under Order IX Rule 13 would lie.

(3.) The notice issued in the present revision to the respondent-defendant came back with the endorsement "firm locked". Thereafter, substituted service through paper publication was resorted to. Even during hearing today, the respondent has not entered appearance in the case and hence I am constrained to dispose of the matter on hearing the petitioner alone.