MAHTAB Vs. RAM SWAROOP AND ORS

JUDGEMENT

(1.) This is an application in revision against an order dismissing an appeal from the order of the Munsif rejecting an application made under Order 9, Rule 13 of the Code of Civil Procedure. The facts are as follows.

(2.) On 5-8-1949, a suit was filed by the opposite parties for a declaration that a certain deed of mortgage was null and void. Several dates for the filing of the written statement were fixed. After the filing of the written statement, issues were struck on 17-3-1950, and then 12-10-1950 was fixed for final hearing. This was the first date of final hearing. On that date the Defendant and his counsel appeared in court and an application was made on behalf of the Defendant-applicant for adjournment. This application not being supported by an affidavit was dismissed by the learned Munsif. Thereupon both the Defendant-applicant and his counsel went away from the court room. According to the affidavit filed by the Defendant-applicant in the court below, he had gone out of the court-room while the application for adjournment was being discussed and when he returned he found that the case had already been heard and decided. But this allegation does not appear to have been accepted by the trial court. However that may be, the Munsif deliberately decided the case on the merits writing a full judgment and holding that there was no evidence adduced on behalf of the Defendant. It is clear from his order that the order was not an ex parte order. The Defendant then made an application for setting aside this judgment under Order 9, Rule 13 of the Code of Civil Procedure. The learned Munsif dismissed this application on the ground that the case had been decided on the merits under Order 17, Rule 3, Code of Civil Procedure. The Defendant applicant went up in appeal to the lower appellate court. That court also dismissed the appeal on the ground that no application under Order 9, Rule 13 lay when the case had not been decided ex parte. Against that order the applicant has filed the present petition in revision under Section 115, Code of Code of Civil Procedure and his contention is that the trial court was not authorised to proceed under Order 17, Rule 3 of the Code of Civil Procedure, as the applicant and his counsel had retired from the case upon their application for adjournment having been dismissed.

(3.) I have no doubt that Order 17, Rule 3 did not apply to the case because this rule applies only when the case had been adjourned at the request of a party for a particular purpose. 12-10-1950 was the first date of final hearing and was not an adjourned date. The trial court was, therefore, in error in thinking that Order 17, Rule 3, applied to this case. But this, however, does not dispose of the matter.