DAYARAM BHAGIRATHI SATNAMI Vs. JOKHURAM MUNDA SONAR

JUDGEMENT

(1.) THE plaintiff-applicant filed a suit against the defendant-non-applicant claiming Rs. 450/-with costs. The defendant-nonapplicant made a counterclaim of Rs. 196/- and costs. On 29-7-58 the plaintiff was absent and consequently his suit was dismissed in default. As regards the counter-claim the Court held the plaintiff to be ex parte and after recording the statement of the defendant found the claim proved and passed a decree in his favour for Rs. 196/- with costs.

(2.) ON 5-9-1958 the plaintiff applied for setting aside the ex parte decree as also for setting aside the dismissal of his suit in default of his appearance. By order dated 2-2-1959 the trial Court held that the plaintiff-applicant had made out a good case for the restoration of the suit but held that even after restoration it would have to be dismissed because the provisions of the proviso to Section 17 of the Provincial Small Cause Courts Act had not been complied with.

(3.) UNDER Order 8, Rule 6 (2) of the Code of Civil Procedure, a written statement filed by the defendant in respect of his counter-claim has the same effect as a plaint. Consequently, in the instant case, in effect there were two suits which were being tried simultaneously, one by the plaintiff-applicant against the defendant-nonapplicant for Rs. 450/- and the other by the defendant-nonapplicant against the plaintiff-applicant for Rs. 196/ -. When the plaintiff was absent on 29-7-1958 two results followed. The suit of the plaintiff-applicanr: was dismissed in default of his appearance. But in the suit wherein the defendant had counter-claimed against the plaintiff, he (the plaintiff) was declared ex parte and an ex parte decree was passed against him. If the plaintiff-applicant wanted to set aside this ex parte decree, the proviso to Section 17 of the Provincial Small Cause Courts Act would be attracted. In so far as the provisions of Section 17 had not been complied with, the decree passed on the counter-claim could not be set aside.