V. RAMAKRISHNAN Vs. K. RAJU

JUDGEMENT

(1.) THE defendant against whom a decree for recovery of a sum of Rs. 11,083.37 has been passed by the trial court and whose appeal has been dismissed, is the appellant in this second appeal.

(2.) THE plaintiff claimed the said sum of Rs. 11,083.37 from the defendant as due in respect of the carpentry work done by him as regards the tenements the defendant was constructing on a contract with Tamil Nadu Slum Clearance Board. The defendant denied that such amount was due to the plaintiff and on the other hand he contended that it is the plaintiff who is due to him a sum of Rs. 1,000 on account of over -payment by him to the plaintiff.

(3.) NOW , in the second appeal, the only question argued by the learned Counsel for the appellant -defendant is that the trial court, when the defendant and his counsel were absent, should have set the defendant ex parte and then passed an ex parte decree but it has erred in passing a decree on merits and therefore the defendant could not file an application to set aside the decree under Order 9, Rule 13 of the Code of Civil Procedure. It may be mentioned here that this question was not raised in the original grounds of appeal and consequently no substantial question of law on this point was formulated by this Court but however during the time of arguments an application was filed by the appellant -defendant for permission to raise such a point, and that application was allowed. Therefore we have to consider whether in the circumstances of the case the trial court was right in passing a decree on merits as it did.