CHHOTABHAI Vs. ISWARIBHAI

JUDGEMENT

(1.) This revision is directed against the order dated 10-11-78 passed by the learned Subordinate Judge. Sam-balpur, in Misc. Case No. 93 of 74 allowing the application under O. IX, R. 13, C. P. C. filed by the defendant-opposite party,

(2.) The facts may be briefly stated. Petitioners as plaintiffs have filed Money Suit No. 6 of 63 in the court of the learned Subordinate Judge, Sambalpur, for recovery of Rs. 92750/- from the defendant-opposite party with pendente lite and future interest at 9 per cent per annum. The defendant had appeared in the trial court and filed his written statement on 14-12-63. The suit was posted for the first time for hearing to 10-4-64. After several adjournments and examination and cross-examination of six witnesses for the plaintiffs the suit was posted to 24-9-74 for hearing. On that date the plaintiffs were present with three witnesses, but the defendant did not take any steps and neither he nor his Advocate was present when the case was called. The court set the defendant ex parte and posted the case to 25-9-1974 for further hearing. On 25-9-1974 the evidence of PWs 1 to 6 recorded by the Commissioner as well as the exhibits marked by him were directed to be treated as evidence, plaintiff No. 1 was examined as PW 7, some more documents on the say of plaintiffs were marked as exhibits, the evidence on the side of the plaintiffs was closed, the learned Advocate for the plaintiffs was heard and the suit was posted to 309-1974 for judgment. After three adjournments the judgment was finally delivered on 9-10-1974. The plaintiffs' suit was decreed with costs and pendente lite and future interest were awarded at the rate of 6 per cent per annum. The decree was sealed and signed on 17-10-1974. On 5-11-1974 the defendant-opposite parly filed a petition under O. IX, R. 13, C. P. C. to set aside the judgment and decree passed against him in the suit, The defendant pleaded that he was ill and bedridden from 18-9-1974 till the first week of October and as such could not attend the hearing of the suit on 24-9-1974 and 25-9-1974. The plaintiff-petitioners filed a counter denying the plea of illness of the defendant. According to the plaintiffs, the defendant was quite hale and hearty in September and the story of his illness was false. The defendant examined himself and Ms doctor in support of his case while the plaintiffs did not examine any witness. The defendant also filed a medical certificate in support of his plea of illness, After hearing both sides the learned Subordinate Judge by his order dated 10-11-1978 held that illness had prevented the defendant from appearing in court on 24-9-1974 and 25-9-1974. Accordingly the defendant's petition was allowed and the ex parte decree passed against him was set aside subject to payment of Rs. 300/- as costs by the defendant to the plaintiffs.

(3.) Learned counsel appearing for the plaintiffs has assailed the aforesaid order of the learned Subordinate Judge mainly on the ground that in the facts of this case the provisions contained in Order IX, Rule 13, C. P. C. were not attracted and that the judgment and decree in the suit must be held to have been passed under the Explanation of Order XVII, Rule 2, C. P. C. Before examining this question it would be proper to recall that at the stage of hearing of the Money Suit, evidence on the plaintiffs' side had been recorded and closed before the ex parte judgment was pronounced, but no evidence, oral or documentary, on the side of the defendant had been recorded by the court, Order XVII, Rule 2, C. P. C provides as follows:-