GIRRAJ KISHORE Vs. MASLEHUDDIN

JUDGEMENT

(1.) This is an appeal against an order refusing to set aside an ex parte decree.

(2.) The appellant was the defendant in a suit for recovery of money. The 28th April 1949 was fixed for final hearing of the salt. On 26th April 1949, an application was made for fixation of another date. This application was put up on the date already fixed. On the date fixed, that is, on 28th April 1949, the Court rejected the application and proceeded to decide the suit ex parte. The appellant then made an application for setting aside the ex parte decree. In that application he had stated that he had gone to Calcutta on 16th April 1949 and had sent a telegram and a letter from there on 23rd April 1949 for the postponement of the case, that he had to start from Calcutta on an urgent call and started on 24th April 1949, that he got down at Allahabad remaining here for two days, that he reached Aligarh on 27th April 1949 in the evening and that he was too weak and exhausted to approach his lawyer and so he was absent on the date fixed, that is, on 28th April 1949.

(3.) The lower Court disbelieved the allegations made in the affidavit and rejected the application on two grounds, first, that since 28th April 1949 was an adjourned date and his counsel was present on that date, though for the purpose of moving an application for adjournment only, it will be deemed that the appellant was present on the date of the hearing and so the order passed by the Court must be deemed to have been parsed on merits and secondly, that there were no merits in the application.