SHAMSUNDER RAJKUMAR Vs. BHARAT OIL MILLS

JUDGEMENT

(1.) ). This is a defendant's application for the revision of an ex parte. decree for Rs. 1047-81 N. P. and costs.

(2.) THE plaintiff, Messsr. Bharat Oil Mills, Nagpur, had claimed Rs. 1047-81 N. P. from the defendant-firm at Calcutta on account of damages resulting from the failure of the defendant to take delivery of certain quantities of linseed oil cakes and the consequent sale thereof by the plaintiff at a lower price. The defendant had contested the suit on several grounds, which need not be stated for the purposes of this revision. The suit was fixed for final disposal on 17-10-1960, on which date the defendant's Counsel prayed for an adjournment on the ground that, the defendant could not come from Calcutta. The prayer was granted subject to the condition of paying Rs. 25/- as adjournment costs to the plaintiff. On the adjourned date, the defendant did not appear and its Counsel did not pay the adjournment costs but only applied (Page 64 of the record) with the copy of a telegram (page 88 of the record) from a partner of the defendant-firm for an adjournment, on the ground that the person, who was to come as a witness, had suddenly fallen ill. He also prayed, in the alternative, that a commission be issued for examining the ailing witness. The learned Small Causes Judge rejected this application and proceeded ex parte against the defendant. The defendant is now challenging the ex parte decree passed against him.

(3.) ACCORDING to the learned Advocate for the defendant, the learned Small Causes Judge had acted illegally in the exercise of his jurisdiction in rejecting the application for adjournment when the defendant had sufficient cause for non-appearance. He could not, however, explain how the defendant could claim a consideration of his application for a further adjournment without having complied with the condition precedent of paying the adjournment costs of Rs. 25/ -. When the condition was not complied with, the learned Small Causes Judge was entirely within his rights in defusing a further adjournment and in proceeding ex parte against the defendant.