TEK BAHADUR Vs. DEBI SINGH AND ORS.

JUDGEMENT

(1.) THIS is an application for revision filed on behalf of defendant 1 - -Tek Bahadur Bhujal under Rule 36 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, challenging the order of the learned Additional Deputy Commissioner, Khasi and Jaintia Hills, dated 20 -7 -51 affirming the 'ex parte' decree passed by the Assistant to the Deputy Commissioner on 17 -3 -50 in Suit No. 38/S of 1946 of the Court of the Assistant to the Deputy Commissioner, at Shillong.

(2.) THE matter arose out of a suit for partition of certain assets belonging to an alleged joint family concern known as Gurkha Dairy Firm including certain lands in the suburb of the town of" Shillong and for rendering of accounts. The original suit was filed by Debi Singh Bhujel against Tek Bahadur Bhujel and two others and the suit was registered on 10 -9 -46. It was undoubtedly a protracted litigation and some witnesses were examined on commission for the plaintiff and the depositions recorded on commission were returned on 4 -4 -49. Since then no date has been fixed for hearing and numerous adjournments were granted on the prayers of the parties and mostly of defendant 1 who alone seems to have contested the suit.

(3.) I am going to dispose of the matter on the first objection raised on behalf of the petitioner. It is clear from the order sheet that 16 -3 -50 was not the date fixed for hearing of the suit but it was only for production of account by defendant 1 for settling the matter as indicated by the order of 21 -1 -50. The learned Munsiff was quite within his rights in dismissing the application for further extension of time for production of account if he did not believe the prayer to be bona fide but that it did not entitle him to fix the next date for an ex carte hearing the production of accounts being for the purpose of settlement. Both parties should have got sufficient notice as to the date fixed for hearing so that they might have been present with their witnesses and have them duly summoned if they wanted to, since the chance of settlement has vanished. An ex parte hearing is provided only when one of the parties is absent on the date of hearing as indicated in Order 9, or under Order 17, Rule 2, Civil P. C. 16/3/50 was not the date fixed for hearing of the suit nor for the appearance of the parties as such. The result of the non -production of the accounts would have been a presumption to the effect that there will be no settlement or there was no account or in case the accounts were produced they would have gone against the defendant. In this case, it could not be said to be an act necessary to the further progress of the suit to attract the provisions of, Rule 3, Order 17, Civil P. C. In this view, the fixing of a date for an ex parte hearing in the absence of one of the parties and under the present circumstances was improper.