RAMUSA KHATOON MUSTT Vs. DURGA KAKATI

JUDGEMENT

(1.) IF, in a suit, the defendant takes adjournment for adducing evidence, but on the date to which the hearing of the suit is adjourned, the defendant fails to adduce evidence and, in consequence of such failure of the defendant, the Court decrees the suit, whether an application under Order IX Rule 13 of the Code of Civil Procedure (in short, 'the Code') will lie to set aside such a decree is the moot question, which this revision petition has raised, and, if so, subject to what conditions, such a decree would be amenable to Order IX Rule 13 is yet another important question, which this revision petition has raised.

(2.) THE material facts, which have given rise to the present revision, may, in brief, be set out as follows:- In Title Suit No. 89/88, the plaintiff adduced evidence and his evidence was closed on 04. 05. 99. While the suit was pending for recording of the evidence of the defendant side, the defendant filed a petition, on 22. 03. 2000, seeking time to adduce evidence and the learned Civil Judge (Junior Division) No. 2, Guwahati, fixed the suit, on 25. 04. 2000, for recording of the evidence of the defendant. On the date, so fixed, i. e. , on 25. 04. 2000, while the plaintiff was present, neither the defendant was present nor was present his witness. The learned trial Court closed the evidence of the defendant and fixed the suit for argument on 10. 05. 2000. Having, eventually, heard the argument of the plaintiff's side on 08. 06. 2000, the learned trial Court delivered judgment, on 19. 06. 2000, decreeing the suit, on contest, with cost. Against the decree so passed, an application was made, under Order IX Rule 13, by the defendant seeking to get the decree set aside. Having given the opportunity of showing cause to, and also upon hearing, the parties concerned, the learned trial Court passed an order, on 16. 12. 2005, setting aside the said decree. Aggrieved by the order, so passed, the plaintiffs have come to this Court with the help of the present revision petition.

(3.) I have heard Mr. CK Sharma Baruah, learned Senior counsel, appearing on behalf of the plaintiffs-petitioners, and Mr. P. Kalita, learned counsel, for the defendants-opposite parties.