MST. GIGI AGARWALLINI AND ANR. Vs. BALESWAR TEWARI

JUDGEMENT

(1.) IN this case the point that really arise for consideration is whether the matter was correctly disposed of under Rule 3of Order 17 Civil procedure Code and whether an application under Rule 13 of Order 9 Civil Procedure Code would lie for setting aside the decree passed in absence of the defendant.

(2.) THE suit came up for hearing on 10th of August 1959 but after examination and cross -examination of one of the plaintiffs' witnesses the defendant prayed for an adjournment due to the absence of some material witnesses and the case was adjourned till 22nd September 1959. On that date the plaintiffs were ready with their witnesses but the defendant made a prayer for adjournment alleging that he was ill and on adjournment being refused, the advocate for the defendant withdrew from the case as he had no instruction to proceed with the ease. The learned Subordinate Judge proceeded to decide the matter on the materials on record and on 25th January 1960 passed a decree in favour of the plaintiffs allowing the prayer for eviction of the defendant, the suit being one for eviction of the defendant on termination of the tenancy. The defendant thereupon made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the decree that was passed in his absence.

(3.) BEFORE going into merits of the case. I might quote below the two provisions relevant for the purpose of this proceeding :