KESHO SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) THIS is a Defendant's revision application Under Section 115 of the Code of Civil Procedure against an order of the court below refusing to set aside an ex parte decree.

(2.) A suit was filed by the Plaintiff -opposite party for possession and damages. After the written statement had been filed by the Defendant, issues were struck and proceedings for final hearing were taken by the trial court. The Plaintiff led evidence and after his evidence was closed, the Defendant filed an application for time to file certain papers. On 17 -5 -1967, the trial court allowed the application and granted time for the purpose. Subsequently however, another application was made by the Defendant for further time to file the papers and on 7 -7 -1967, the trial court recorded an order declaring that the Plaintiff's evidence had been closed and that time was granted to the Defendant upto 27 -7 -1967, for filing the papers. However no papers were filed by the Defendant by that date. The trial court then fixed 18 -8 -1967, for final hearing. On that date, an application was made by counsel for the Defendant praying for adjournment of the case. The trial court rejected the application and recorded an order declaring that the Defendant's evidence had closed. On the same date the trial court decreed the suit ex parte on the merits. Thereafter on 12 -9 -1967, the Defendant filed application Under Order IX, Rule 13, Code of Civil Procedure praying for setting aside the ex parte decree. The trial court rejected the application as not maintainable. An appeal by the Defendant was dismissed by the lower appellate court on 13 -11 -1968. The lower appellate court held that although there was sufficient cause for the absence of the Defendant on 18 -8 -1967, the application for setting aside the ex parte decree was not maintainable as the suit had been disposed of Under Order XVII, Rule 2, Code of Civil Procedure. It is pertinent to point out that the plea of the Plaintiff that the suit had been disposed of Under Order XVII, Rule 3, was over -ruled. The Defendant then preferred the instant revision application. The case was listed before our brother J.S. Trivedi, who having regard to the apparent conflict of decisions on the point in this Court has referred this case to a larger Bench. That is how this case now comes before us.

(3.) IT is apparent that, so far as Rule 3 is concerned, although the Defendant was given time to file the papers and no papers were filed by him by the date fixed for the purpose, the trial court did not proceed to decide the suit forthwith. The word "forthwith" contained in Rule 3 has been considered in Mst. Jagge v. Kanhaiya Lal : AIR 1957 All 344. A Division Bench of this Court observed: