QUDRUTULLAH Vs. MOHAMMAD KASIM KHAN

JUDGEMENT

(1.) This is a defendant's appeal dismissing his application for setting aside a decree dated 28-3-1947. The plaintiff filed a suit for recovery of Rs. 8,846-56 on 12-4-1946. Summons were served on the defendant after more than one attempt. On the first date of hearing he was absent when the Court directed that the proceedings against him should be ex parte. After that order, the defendant applied for time to file a written statement. Again after several adjournments the written statement was filed and issues were framed on 31-8-1946. The Court fixed 11th October for the final hearing of the case, but the case had to be adjourned as the Court bad no time and 11-12-1946, was fixed for final hearing. The plaintiff summoned his witnesses for that date. They were examined and after the plaintiff had closed his case the defendant was called upon to produce his witnesses. His counsel was not there and at the request of the defendant the learned Judge granted a short interval and directed that he would take up the case after lunch. After lunch the defendant filed an application that he was misled by a talk of a settlement and did not, therefore, summon his witnesses for that date. The plaintiff denied that there had been any such talk, but the learned Judge granted an adjournment on payment of costs. Costs were paid and the learned Judge directed that the case should be put up on 28-3-1947, for further hearing. On that date, the defendant again absented him-self. He had not summoned any witnesses for that date and the learned Judge after hearing arguments and considering the material on the record purported to decide the case on the merits.

(2.) No appeal was filed against the decree dated 28-3-1947, but an application for setting aside that order was filed under Order 9, Rule 13, Civil P. C.

(3.) The learned Judge has held that he had no jurisdiction to set aside the order, the decree not being an ex parte decree but a decision on the merits under Order 17, Rule 3, Civil P. C.