GURDIT SINGH Vs. NATHA SINGH

JUDGEMENT

(1.) The defendant-appellant has filed this appeal against the order of the trial Court dated October 28, 1976, whereby his application under Order IX Rule 13 of the Civil Procedure Code, for setting aside ex parte decree dated May 17, 1976 was dismissed.

(2.) The plaintiff-respondent Natha Singh filed a suit for the recovery of 22,750/-, on the basis of a pronote, in the Court of Senior Sub Judge, Jullundur. The plaintiff closed his evidence, and April 26, 1976 was the date fixed for the evidence of the defendant-appellant. On that date no witness was present, nor was any summoned through the Court. On that date the defendant had undertaken to produce the entire evidence at his own responsibility on the next date of hearing, which was May 17, 1976. On that date neither the defendant, nor his counsel appeared and consequently the trial Court passed an ex parte decree in favour of the plaintiff. On May 18, 1976, the defendant moved an application for setting aside the said ex parte decree alleging that by mistake he took the date as May 18, 1976, instead of May 17, 1976 and on that date i.e. May 18, 1976, when he brought his witnesses, he was told by the Court that he had already been proceeded against ex parte. On May 17, 1976 and an ex parte decree was passed against him. It is further alleged therein that on May 17, 1976 the case was called for and the counsel for the defendant also could not appear as he was busy in the Court of Directorate of Enforcement, Jullundur. These allegations were controverted in the reply filed on behalf of the plaintiff-respondent. It was pleaded that the date was given in the presence of the parties and thus there was no chance of mistaking it as alleged by the defendant. It was further pleaded that it was only a pretext to cover the intentional negligence, carelessness on the part of the defendant with the sole intention of delaying the realization of the decretal amount.

(3.) The defendant-appellant examined Shri V.K. Vadehra Advocate, as A.W. 1 and himself came into the witness box as A.W. 2. In rebuttal Natha Singh plaintiff R.W. 1. The trial Court after going through the evidence appeared as of the parties came to the conclusion that there was no sufficient cause at all which prevented the defendant-applicant from appearing in the Court on May 17, 1976 and consequently dismissed the application under Order IX Rule 13 of the Civil Procedure Code. Feeling aggrieved against this, the defendant has come up in appeal to this Court.