DIN DAYAL Vs. SHEO PRASAD

JUDGEMENT

(1.) This is an application in revision under Section 115 of the Code of Code of Civil Procedure 1908 (Act, No. v. of 1908) by the Plaintiff against the order of the Munsif of Bulandshahr setting aside the ex-parte decree which had been passed by him in favour of the Plaintiff on May 28, 1951 and restoring the case.

(2.) It appears that there were several adjournments in the case for want of time and May 28, 1951 was ultimately fixed for final disposal. On that date the Plaintiff and his counsel were present, but the Defendant was absent. An application was made by the Defendant's counsel for adjournment of the case on the ground that the Defendant was ill. This application was rejected and thereafter the counsel made a statement that he had no instructions and withdrew from the case. The learned Munsif then recorded the evidence of the Plaintiff and passed an ex-parte decree against the Defendant. The Defendant made an application for setting aside the decree on the ground that he was ill on the date of the final hearing and could not, therefore, attend the court. He filed an affidavit in support of the application. This affidavit was accepted by the learned Munsiff and he allowed the application, set aside the ex-parte decree and restored the case.

(3.) It was contended on behalf of the applicant that the decree could not be deemed an ex-parte decree but on merits as it could not be said that the Defendant was absent on that date when an application for adjournment had been made on his behalf and had been rejected by the learned Munsiff. This contention was based on an Explanation which was added by the Allahabad High Court to Order 17 Rule 2, Code of Code of Civil Procedure and which ran as follows: