N A SUYAMBULINGAM Vs. V K SWAMINATHAN

JUDGEMENT

(1.) .: This Is an appeal against the order of the learned single Judge allowing A.A.O.No.783 of 1986 and setting aside an EX PARTE judgment in O.S.No.180 of 1983, on the file of the first Additional Subordinate Judge, Erode. The suit was taken up for trial on 22.10.1984, and on that date P.W.I was examined and Exs.Al to A9 were marked. On that day, counsel for the first defendant was 'also present. The case was adjourned for further trial on 24.10.1984. On that day, counsel for the first defendant withdrew his appearance and the first defendant was set EX PARTE. P.W.I was further examined and the case was posted to 25.10.1984. It appears that on that day the second defendant was examined and Ex.Bl also was marked. The arguments of the plaintiff were heard and the judgment was delivered on 31.0.1984. On 22.11.1984 the first defendant filed an application to set aside the EX PARTE decree. That petition was dismissed by the learned Subordinate Judge. However, on appeal, the learned single Judge of this Court allowed the appeal and set aside the judgment and decree and remanded the matter for fresh trial on merits.

(2.) IN this appeal, learned counsel for the appellant (plaintiff) raised two contentions. Firstly, he contended that the judgment dt.31.10.1984, is not an EX PARTE judgment (sic) is not maintainable. This was on the ground that the suit had been taken up for trial and, in fact, some evidence had been taken and therefore on merits and the judgment delivered should not be treated as an EX PARTE judgment. The relevant provision of the Code of Civil Procedure is R.2 of Or.17, which reads as follows: