FALGUNI SINGH Vs. MD. KERAMAT ALI

JUDGEMENT

(1.) THE petitioner was a defendant in an ejectment suit. An ex parte decree was passed against him on 26th May, 1950. He applied for setting aside of the ex parte decree under O. 9, R. 13, Criminal P.C. The application was disallowed by the learned Munsiff. His appeal to the learned Additional District Judge also failed. He has now invoked the revisional jurisdiction of this Court.

(2.) THE suit which was decreed ex parte was instituted against the petitioner in 1949. He was duly served and appeared in answer to the summons. His last appearance in the case was on 11th January 1950 when the case was adjourned to 22nd March 1950. On this date the case was adjourned to 3rd April 1950 by the ex officio Munsiff, who passed the order as the presiding officer of the Court had been transferred and his successor in office had not arrived. On 3rd April 1950 the Munsiff who had been appointed to take over and who had arrived, ordered that defendant who was absent be proceeded against ex parte and fixed 26th April 1950 as the date for the next -hearing. Upto this time he had not been empowered to act as Munsiff. He adjourned the case again on 26th April 1950 for ex parte hearing. The plaintiff alone was present. On 19th May the next hearing in the case, the presiding officer again was not present. He had gone on casual leave. The ex officio Munsiff adjourned the case to 26th May 1950 stating that plaintiff was present and also ready. On 26th May 1950 ex parte decree was passed by the Munsiff on whom admittedly power had been conferred to hear and dispose of the case by that time. The petitioner alleged that he had been defending the suit diligently till the transfer of the Munsiff of Hailakandi. As there was no Munsiff there, for some time, his counsel informed him that he would intimate to him the next date for the hearing of the case when fixed after the arrival of the new Munsiff.. He got no information from his counsel about the adjourned hearings or of the date when the ex parte decree was passed. The failure of his counsel to inform him of the due dates was thus put forward as sufficient cause for personal non -appearance within the meaning of O. 9, R. 13, Civil P.C. The learned Munsiff found that defendant had failed to appear on at least four hearings. He thought that the defendant did not consider it necessary to appear in this case as he had instituted another suit NO. 12 of 1950 in which he had claimed title to the property which was the subject -matter of the ejectment suit.

(3.) THE Learned Counsel for the petitioner has not disputed the finding of fact arrived at by the learned Additional District Judge. He has raised a new question. His contention is that the petitioner was not bound to appear on 22nd March 1950, as the presiding officer of the Court had been transferred and the successor had not yet arrived. The ex officio Munsiff who adjourned the case that day had no power to do so as the case had not been validly transferred to him. In any case, petitioner had no notice that the case would be put up before him. He was also under no obligation to appear even on the adjourned date or dates without further notice. He also points out that the order of 3rd May, directing ex parte hearing of the suit was passed by a Munsiff who at the time had no authority to act as such. His argument in short is that the petitioner was entitled in law to be informed of the date of hearing when fixed by a competent Court after 22nd March. Non -appearance therefore was due to a sufficient cause and the decree though passed by a competent Court was not sustainable by reason of the omission to notify the date of hearing to the petitioner. The contention was admittedly not raised before the Courts below and though the petitioner may not be entitled to raise it as of right, this Court is not precluded from considering it particularly when no fresh enquiry or further evidence is needed for the decision of the question which eliminates all risk of possible prejudice to the respondent.