CHAMPALAL HAJARIMAL Vs. CHOGALAL RAMNIWAS

JUDGEMENT

(1.) THE Plaintiffs Chogalal Ramniwas filed a suit against two Defendants (1) Champalal and (2) Ramchandra for a sum of Rs. 430/10/3 in the Court of the Small Causes at Indore. The Defendants contested the claim and the trial Court therefore proceeded with the trial. On 29 -1 -1951 the Plaintiffs applied for amendment of the plaint and the case was fixed for the reply of the Defendants on 1 -2 -1951. On that day when the case was called the Defendants and their pleader were absent and an ex parte decree was passed against the Defendants.

(2.) THE same day the Defendant's counsel applied for setting aside the ex parte decree. On 20 -2 -1951 the Defendant No. 1 furnished security as required by Section 14 of the Small Cause Courts Act and on 11 -8 -1951 filed an affidavit in support of the application. In this affidavit the Defendant No. 1 has stated that he is a resident of Dhar and could not reach the Court in time on that date as he missed his first bus at Dhar.

(3.) I do not think that the order of the lower Court can be supported on merits. The case was fixed on 1 -2 -1951 only for filing a reply to the amendment application and there was no order for the parties to remain present. The trial Court could allow the amendment as in fact it did but was certainly not justified in proceeding to pass an ex parte decree. The counsel for the Defendants appeared after some time and filed an application for setting aside the decree on the same day. The Defendant No. 1 had also turned up as stated by him in the affidavit and there is no reason to disbelieve the explanation given by him for his absence when the case was called.