HARIHAR ROY Vs. BADRI NARAYAN DAS

JUDGEMENT

(1.) ON the date fixed for hearing of a defendant's application under Order 9 Rule 13 of the Code of Civil Procedure, the defendant prayed for an adjournment on the ground of the inability of his lawyer to attend the Court. The prayer for adjournment having been refused and the defendant therafter taking no further step to prosecute the application, the same was dismissed for default and the defendant has now filed is appeal against the said order of dismissal.

(2.) APPEARING for the plaintiff respondent in support of the order of dismissal, the learned Counsel Mr. R. K. Sanyal, has urged that as the decree sought to be set aside was not an exparte but a contested one, an application under Order 9 Rule 13 could not lie. Mr. Sanyal has drawn our attention to the certified copy of the decree where it has been noted in the ordering portion that "the suit is decreed on nominal contest. It is obvious that if the suit was decreed on contest, whether*" nominal or substantial, no application could lie for setting aside the same under Order 9 Rule 13 as the said Rule on its express terms would apply only "in any case in which a decree is passed exparte".

(3.) IT appears from the Order decreeing the suit, being no, 21 dated 17. 1. 1984, that "the suit was fixed for hearing on 20. 12. 1983. P. W. I badrinarayan (i. e. the plaintiff) was examined and partially cross-examined on that day. He was to be cross-examined on the following day. The defendant filed an application for adjournment on 21. 12. 1983. It was considered and rejected. Nobody appeared for the 'defendant for cross-examining the witness. Defendant was found absent on call". And the Suit was then eventually decreed by the trial-Judge on a consideration of the evidence of the plaintiff who was only cross-examined in part and other materials on record by the aforesaid Order dated 17. 1. 1984. Could it be said to -have been decreed on contest to rule out applied on of Order 9 Rule 13 of the Code of Civil Procedure which undisputedly applies only to exparte decrees?