SCIENTIFIC INSTRUMENT AND CHEMICAL COMPANY Vs. VISHWANATH PODDAR

JUDGEMENT

(1.) This appeal directed against the order dated 22nd July 1981 passed by Mrs. Justice Khastgir refusing to set aside the ex parte decree passed against the petitioner in suit No. 362 of 1973.

(2.) From 2nd July, 1981 the suit appeared in the list. On 6-7-81 the suit was called on several times, issues were settled, evidence taken on commission formally tendered and relevant portions thereof placed. The appellant's counsel prayed for leave to retire and the suit was decreed ex parte. The application for setting aside the ex parte decree was filed on 17-7-81 by Ranjit Das on behalf of the defendant under Order 9, Rule 13 C. P. Code. In the said petition two things were principally alleged. The first plea was a plea of illness of Dr. S. Das, the Senior counsel of the petitioner and his inability to appear at the time the suit was called for hearing. The second and more important plea was that on the date in question that is 6th July, 1981 the petitioner was suffering from backache, had been to the chamber of his friend Dr. Jyotish Saha, M. D. at 18A, Mohanbagan Row, Calcutta, for consultation and after consulting him arrived at his Bank namely, Union Bank of India at Hatibagan on his way to Court to collect some bank drafts. He alleged that the bank drafts became ready and delivered to him at about 11.15 A. M. and he boarded a tram for Delhousie square but he was caught up in a traffic jam. He alleged that even after walking to Acharya Prafulla Chandra Road he tried to hire a taxi but had difficulties in getting the same and he eventually reached the Court at 1-20 P. M. In the judgment appealed against the first ground urged has been overruled on a finding that the absence of the senior counsel had not handicapped the defendant materially as the junior counsel of the petitioner Bhaskar Kumar Roy was present in Court and helped the Court in settling the issues. The second ground was negatived by the Court on the ground that there was no urgency on the part of the petitioner to go to the Bank on the date the suit was expected to be taken up for hearing that is on 6-7-81. It further transpired that the petitioner had his own car and he could easily come to the court using the car. Non-user of the car on that important date by the petitioner indicated gross negligence on his part.

(3.) The learned advocate for the appellant petitioner assails the order appealed against and contends that the Court failed to appreciate the petitioner's case. It is also emphasized that the plea of traffic jam is borne but convincingly by reports published in National Dailies on the next day that is 7-7-81.