ALOKE KUMAR DEY Vs. ASHOKE KUMAR DEY

JUDGEMENT

(1.) THIS appeal is directed against, the order dated 17. 12. 1998 passed by the learned Judge, 3rd Bench, Court of Small Causes, kolkata in suit No. 305 of 1997 dismissing thereby the petition under Order 9 rule 13, C. P. C. read with Chapter 9 Rule 15 of the Provincial Small Causes court Manual.

(2.) THE defendant filed the said petition praying for setting aside the ex parte decree dated 20. 07. 1998 and for restoration of the suit to its original file and number. The contention of the defendant/appellant is that as against the order dated 12. 03. 1998 the defendant moved a revisional application bearing C. O. No. 1068 of 1998 before the Hon'ble High Court, Calcutta and the same came up for hearing on 14. 07. 1998 and subsequently on 20. 07. 1998 the defendant attended the Hon'ble High Court, Calcutta in connection with the hearing of C. O. No. 1068 of 1998 at 10. 30 A. M. Moreover, there was obstruction in the Central Avenue due to the demonstration by the lorry drivers and fruit sellers and, as a result thereof, there was heavy traffic jam. The learned Advocate for the defendant for the said reason attended Court at 11. 45 a. M. and thereafter came to learn that the ex pane decree had been passed as none appeared on behalf of the defendant. It is the contention of the defendant that if the ex parte decree is not set aside, the defendant will suffer irreparable loss.

(3.) THE plaintiff filed a written objection against the petition under Order 9 Rule 13, C. P. C. contending, inter alia, that both the defendant and his lawyer were seen in the ground floor of the Court premises and that the other contentions raised in the petition under Order 9 Rule 13 were false.