SUBIR KUMAR BHATTACHARYYAS Vs. MOHAMMAD HABIBAR BISWAS

JUDGEMENT

(1.) These are the two revisional applications at the instance of the plaintiff/petitioners in Money Suit Nos. 20 of 1979 and 21 of 1979 and are directed against the orders bearing the same date, namely, April 7, 1980, passed by the learned Subordinate Judge, 6th Court, Alipore, in the aforesaid two suits. By the orders impugned the learned Subordinate Judge had allowed the two applications filed by the defendants in the aforesaid two suits under Order 37, Rule 4, of the Code of Civil Procedure. To appreciate the point at issue it would be necessary to refer to more or less the undisputed facts shortly set out as follows.

(2.) The two suits were filed on August 8, 1979. The suits coming under the purview of Order 37 of the Code, summonses in Form IV, Appendix B were issued on September 18, 1979, and such summonses were served on October 2, 1979. The Court being closed for the Puja holidays from September 20, 1979 to October 232, 1979, the defendants entered appearance on October 23, 1979, by filing a Vakalatnama executed in favour of a lawyer. In doing so, the defendants failed to furnish formally their address for service of notice on them though such address was set out in the Vakalatnama itself ; they further failed to serve a notice of their appearance on the learned lawyer for the plaintiffs though it is claimed that such a notice was sent under Certificate of Posting to the plaintiffs themselves.

(3.) On the returnable date, that is, on November 15, 1979, both the plaintiffs and the defendants filed their Haziras. When the matter was called on, the defendants were however absent and the plaintiffs filed an application for passing an ex parte decree on the ground that the defendants have failed to discharge their mandatory obligations under Order 37 Rules 3(1) and 3(3), of the Code. Notice of such an application was not served upon the lawyer for the defendants and the application being heard ex parte, the learned Judge allowed the same and proceeded forthwith to hear the suits ex parte. The plaintiff No. 2 was examined as P.W. 1 and the promissory notes being proved, the suits were adjourned to the next day for orders.