BANCHHANIDHI SATPATHY Vs. GHANASHYAMA SATPATHY

JUDGEMENT

(1.) ON 28th March 1968, both the parties filed hazira. Counsel of both the parties were heard as to who would begin first. Since the defendants had set up a plea of adoption, the Court held that the onus to prove adoption lies on them. In this view of the matter he said that the defendants were to begin. Subsequently, the defendants filed a petition for time on the ground that their main witness was ill. The learned Munsif noticed that the defendants had given hazira of five witnesses who were in attendance in Court. In those circumstances the prayer for adjournment was rejected and the defendants were directed to get ready. Subsequently, the defendants did not turn UP. The plaintiff led evidence and an ex parte decree was passed. An application was filed to set aside the ex parte decree under Order 9, Rule 13, C. P. C. The application having been rejected, an appeal was filed which was also dismissed. Against the appellate order, the Civil Revision has been filed,

(2.) ORDER 17, Rule 3. C. P. C. clearly applies to this case. It has been held in Baidhar behera v. Pranabandhu Maharatha, (1965) 31 Cut LT 871 that where the advocates commenced hearing of a case it would not be one under Order 9. Rule 13. C. P. C. It cannot be described to be an ex parte proceeding. The reported case is directly applicable to the facts of this case. It will be contrary to common sense to hold that a party was ex-parte when the advocate appearing for the party argued the case on a point of law and the Court save a decision on the argument and asked the defendants to begin with evidence.

(3.) THAT apart, even assuming that Order 9. Rule 13, C. P. C. is applicable, no sufficient cause is made out for the defendants not taking part in the proceeding. Either way, there is no merit in the application which was rightly rejected.