RAMCHANDRA RAMGOPAL Vs. KAMALKISHORE

JUDGEMENT

(1.) BY these revision applications, the original plaintiff challenges the order dated 14-12-1993 by which the Court below has set aside the judgment and decree dated 12-4-1993 delivered by it in Special Civil Suit No. 168 of 1991 treating it to be an ex parte decree.

(2.) THE applicant original plaintiff filed Special Civil Suit No. 168 of 1991 against present revision applicant and its partners for recovery of Rs. 2,95,526/-towards the settlement of account which the revision applicant had opened with it. The contention of revision applicant is that the said account was opened by respondent No. 1 firm on 10-4-1989 and the revision applicant - plaintiff made payments against Hundi to the original defendants. The details of these payments are mentioned in the plaint and it is mentioned that on making credit debit entries on 1-4-1990, sum of Rs. 2,27,696/- was found due against the original defendants. The defendants had issued four cheques in the month of May, 1991 but those cheques were returned by the Bank with endorsement "account closed". The trial Court has decreed this Suit on 12-4-1993 and in the heading of judgment itself, it is mentioned that it is judgment under Order 17, Rule 3 (a) of civil Procedure Code. The operating part of judgment further mentions that it is joint and several decree against the defendants ordering them to pay sum of rs. 2,95,526/- to the plaintiff firm with future interest at 21% per annum from the date of suit till its realisation.

(3.) ON 7-6-1993, respondent No. 1 filed MJC No. 76 of 1993 under the provisions of Order 9, Rule 13 read with section 151 of Civil Procedure Code for setting aside said judgment and decree by mentioning that on 12-4-1993, he was present in the Court throughout the day with his counsel but the trial Court did not call out his case. He has contended that the trial Court, therefore, could not have proceeded to deliver ex parte judgment and decree. The trial Court has thereafter passed the impugned order (judgment) in MJC on 14-12-1993. The trial Court has found that the judgment is not under the provisions of Order 17, rule 3 (a) of Civil Procedure Code and it has accepted the version that on 12-4-1993. Respondent No. 1 was present in the Court. In this background, the ex parte judgment and decree dated 12-4-1993 is set aside and the suit has been restored back to file without any order as to costs.