NAMDEO SAKHARAM MESHRAM Vs. MOTILAL UDAICHAND JAIN

JUDGEMENT

(1.) This appeal is filed against the order made by the Civil Judge. Senior Division on April 8, 1974, holding that the Miscellaneous Judicial Case No. 20 of 1973, was incompetent as the Special Civil Suit No. 16 of 1972 decided on February 27, 1973 was disposed of with the aid of the provision of Order 17. Rule 3 of the Code of Civil Procedure and therefore, an application under Order 9, Rule 13, did not lie. The merits of the sufficient cause had not been answered.

(2.) Some facts are not in dispute. The said Special Civil Suit was filed seeking specific relief on the basis of agreement to sell agricultural land. The 6th on January 1973 was the date fixed for evidence and thereafter the hearing of the suit was adjourned to 22nd January and then to 1st February, on which date plaintiff entered the witness-box and examined himself in chief. An application was filed on behalf of the defendant by the counsel seeking time for cross-examination. That was allowed and the case was posed for February 21, 1973. The counsel informed the defendant about this adjournment by a registered notice of February 10 1973. By that notice the defendant was informed that in case he did nt appear the counsel would report "no instruction". In the present application itself the allegations were made, which are not as veten quired not that defendant was ill from 19th of February and, therefore, could not attend the Court on 21st. He had however, instructed the counsel to seek an adjournment, but those instruction could not reach the counsel. Eventually on 21-2-1973 the counsel of the defendant passed a pursis before the Court stating that he had no instructions. The matter was not immediately disposed of but it appears the Court proceeded to fix 27-2-1973 and made an ex parte decree on that date.

(3.) In the application itself k filed by the defendant in Misc Judicial Case NO. 20 of 1973, all these allegatiosn appear to have been made. The learned Judge has taken the view that te disposal of the suit on 27-2-1973 was under Order 17 Rule 3, and therefore, the application itself was not tenable.