HAVABIBI Vs. FATEHMOHMED DOSMOHMED

JUDGEMENT

(1.) This appeal is directed against an order dated 30th September, 1988 which the application of present appellants for setting aside the ex pane decree passed against them in Civil Suit No. 1228 of 1983 on 5th February 1988 was rejected.

(2.) I have heard' the learned Counsel for appellants. No one has appeared for respondents in spite of service when the matter was called out on 3rd February, 1988, nor any one has appeared today when the matter was being called out twice.

(3.) The facts necessary for the present purpose as appearing from the order under appeal may be noticed. That on 29.1.1988, Suit was posted for recording evidence of the plaintiffs. No one had appeared for defendants on that date. The Court recorded evidence of the plaintiffs ex pane and the matter was adjourned for pronouncement of judgment. The judgment was pronounced on 5th February, 1988 and the plaintiffs' suit was decreed. Having come to know about this, an application was moved before the learned Trial Judge for setting aside the ex pane decree. It was urged on behalf of defendants-appellants that Mr. Vanjara who was in-charge of the case on behalf of Mr. Qureshi for defendants had abruptly proceed to Navsari and when defendant No. 2 on coming to the Court knew about absence of Mr. Vanjara, he contacted the clerk of the advocate to move an application to the Court for adjournment. However, "no objection" from the learned advocate for Plaintiffs could not be obtained in time, for submitting the application for adjournment. Before application could be tendered, evidence of the plaintiffs came to be recorded and the matter was adjourned for pronouncement of judgment. On this premise, it was stated that there was sufficient cause for non-appearance of the defendant-appellant on 29.1.1988, when the case was fixed for recording of evidence of the plaintiffs and decree passed ex pane against the defendants be set aside.