GAJPATI PRASAD PALL Vs. CHANDRIKA AND OTHERS

JUDGEMENT

(1.) This is a plaintiff's appeal against the order dated 7th Oct., 1985 passed by the Additional Civil Judge, Basti setting aside in appeal an exparte decree dated 14th April, 1983 passed by the trial Court. The facts in brief are that 9th March, 1983 was the date fixed in the suit. On that date a joint application was made on behalf of the parties for adjournment of the case on the ground that there was a talk of compromise. This application was allowed and 16th March, 1983 was fixed for hearing of the Case. On that date no compromise was filed and the plaintiff examined his witnesses. 31st March, 1983 was the date fixed for examining the witnesses of the defendant. On that date the Presiding Officer was on leave and, as such, the case could not be taken up and 14th April, 1983 was the date fixed. On 14th April, 1983 as is the case of the defendant which has been accepted by the Order appealed against the defendant along with his witnesses was present when the case was called. His counsel, however, was engaged in some other court and after waiting for some time the trial Court closed the evidence of the defendant and decreed the suit exparte. Aggrieved by that order the defendant made an application for setting aside the exparte decree dated Nth April, 1983 which was dismissed on 24th Oct., 1983 by the trial Court, as is apparent from a copy of the order of that date produced before me by counsel for the appellant, without recording any finding as to whether there was sufficient cause or not for setting aside the exparte decree only on the ground that the proper remedy for the applicant was to file an appeal and not an application for setting aside the exparte decree. The defendant thereupon preferred a composite appeal being Civil Appeal no. 446 of 1983 against both the orders namely, the order dated 14th April, 1983 decreeing the suit exparte and the order dated 24th Oct., 1983 dismissing the application for setting aside the exparte decree. It is this appeal which has been allowed by the order appealed against.

(2.) It has been urged by counsel for the appellant that the appeal insofar as it was against the exparte decree dated 14th April, 1983 was time-barred and even an application for condoning the delay was not made and consequently in view' of the mandatory provisions contained in this behalf under Order 41, Rule 3-A of the Code of Civil Procedure the appeal could not have been allowed. No exception can be taken to the submission made by counsel for the appellant in this behalf. However, that is not conclusive so far as the present appeal is concerned. As seen above, the appeal before the lower appellate court was a composite appeal and challenged the order dated 14th Oct., 1983 also whereby the application made by the defendant for setting aside the expate decree had been dismissed. This appeal was within time and could have thus been disposed of on merits. In the order appealed against the lower appellate court has recorded a categorical finding that sufficient cause had been made out for setting aside the exparte decree dated 14th April, 1983 and that it was a case where the trial court showed undue haste in closing the defendants evidence and decreeing the suit exparte. This finding is obviously a finding of fact and in view of the circumstances pointed out above is a correct and just finding As a consequence of the finding that there was sufficient cause for setting aside the exparte decree dated 14th April, 1983 the said exparte decree had to be set aside and no exception, as such can be taken to the order appealed against. Now the parties would have an opportunity of getting the suit decided on merits after producing evidence.

(3.) In the result I find no merit in this appeal. It is accordingly dismissed. Since the suit was filed in the year 1980, the trial court shall dispose it of expeditiously. Appeal dismissed.