PATIT PAWANESHWAR MAHADEOJI Vs. NAGAR MAHAPALIKA

JUDGEMENT

(1.) A learned single Judge has referred this case to a Division Bench on the view that the decision of the Division Bench of this Court in Mst. Hummi v. Azizuddin : AIR 1917 All. 475 requires reconsideration.

(2.) A suit for permanent injunction was fixed for final hearing on 18 -1 -1973. It was, however, adjourned at the instance of the Defendant to 15 -2 -1973. On the latter date an application for adjournment by the Defendant was refused. The court proceeded. The Plaintiff examined witnesses. No one appeared on behalf of the Defendant. Thereafter the court fixed 23 -2 -1973 for delivery of judgment. On that date suit was decreed.

(3.) THE Plaintiff came up to this Court in appeal. It was urged that in an appeal against the decree itself the court had no jurisdiction to go into the merits of the question whether the Defendant had sufficient cause for non -appearance or whether his application for adjournment should or should not have been allowed. In support, reliance was placed inter alia on Mst. Hummi's case. This case, in our opinion, is clearly distinguishable. There the suit was decreed ex parte. The Defendant applied for the setting aside of the exparte decree. He also filed an appeal. The application for restoration was dismissed on the finding that there was no sufficient cause for non -appearance. The Defendant appealed against that order as well.