MUNI LAL Vs. GOPI CHAND AND SONS

JUDGEMENT

(1.) Three matters between the parties were pending in different Courts when on October 16, 1974, the suit from which the present proceedings have arisen was fixed for framing issues and another suit between the parties was pending in the Court of Shri Harjit Singh, Subordinate Judge First Class, Ludhiana. The third matter was an application before the District Judge for consolidating the two suits. That application was also fixed for October 16, 1974. When the suit for framing issues was called on for hearing no one appeared for the defendants and proceedings were ordered to be ex parte against them. As a result of that order an ex parte money decree was passed in favour of the petitioner against the respondents. Two days later, that is on November 4, 1974, the respondents made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. By his order under revision, Shri R.C. Sharma, Subordinate Judge Third Class, Ludhiana allowed the application and set aside the ex parte decree subject to payment of Rs. 35/- as costs.

(2.) Mr. M.L. Sarin, learned counsel for the plaintiff-petitioner, submits that there is a glaring error of jurisdiction in the order of the trial Court inasmuch as no finding at all has been recorded about there being any cause much less sufficient cause for non-appearance of the defendant-respondents before the trial Court on November 2, 1974 when the ex parte decree was passed. Counsel has gone further and submitted that even all allegation had not been made in the application for setting aside the decree disclosing any sufficient cause for non-appearance before the Court on the date on which the ex parte decree was passed. The trial Court has held in the order under revision that the counsel for the defendant-respondents appeared before the District Judge in the proceedings for consolidation of the two suits, and though he appeared in the Court of Shri Sharma in some other cases, he did not put in appearance in this particular case though it was called for hearing first at about 10.15 A.M. and for the second time at about 4 P.M. The learned trial Court has rightly held that this amounted to negligence on the part of the Advocate or his clerk. All that relates to October 16, 1974. The learned Subordinate Judge did not proceed to record ex parte evidence and to pass an ex parte decree on that day in spite of the fact that it was a simple money suit for value of goods said to have been supplied by the plaintiff to the defendant. He rightly adjourned the case to October 18, 1974, and he even granted two further adjournments. From October 18 he adjourned it to October 22 and then to November 2, 1974, and it was only when the defendants consistently absented themselves on all the four hearings that ex parte evidence was recorded and ex parte decree was passed. Learned counsel for the defendant-respondents has submitted that his clients had no knowledge of the various dates fixed by the trial Court after October 16, 1974 and that they came to know only on November 4, 1974, when in the course of the hearing of the application for consolidating before the District Judge the plaintiff informed the District Judge that one of the suits having already been decreed, there was no question of the defendants pressing the application for consolidation. Mr. Sarin has shown me copies of the orders of the Court of the District Judge, dated October 1 and November 12, 1974. These orders show that on October 16 counsel for the defendants was present before the District Judge when the plaintiff filed his reply to the application for consolidation which was adjourned for further consideration to October 31, 1974. The order, dated November 12, 1974, states inter alia as below :-

(3.) This petition is accordingly allowed, the order of the trial Court is reversed, and the application of the defendant-respondents for setting aside the ex parte decree is dismissed. The parties will bear their own costs of the proceedings in this Court. Revision accepted.