SHEOPUJAN PANDEY Vs. BAIJ NATH RAI

JUDGEMENT

(1.) THIS Miscellaneous appeal has been filed by Sheopujan Pandey who was defendant no. 4 in Title Suit No. 184 of 1982 seeking annulment of the order passed in Misc. Case No. 2 of 1992 under Order IX Rule 13 C.P.C.

(2.) THE appellant 'scase before this Court is that the aforesaid title suit was not ready for hearing on 20th February 1989 when the trial court passed an order for ex -parte hearing, firstly, because by an order dated 15th April, 1983, the court had directed the plaintiff -respondent here to take steps for appointment of a guardian ad litem since the natural guardian failed to appear in spite of notice. The order dated 12th May 1983 (Annexure -3) also showed and the plaintiff was still directed to take steps for appointment of an Advocate as the guardian ad litem of defendant no. 13. of the suit. So the suit was not ready for ex parte hearing on 20th December, 1989. Moreover, the appellant (defendant no. 4 of the suit) had already filed written statement which was not accepted because he was directed to pay cost of Rs. 70/ -(seventy) but this was not condition precedent to the acceptance of W. S. Moreover, the order dated 4th December, 1989 was not shown to the Advocate Sri Indradeo Singh who had filed W. S., rather it was shown to the appellant 'slawyer Sri Indrasen Rai who was in -charge of the suit earlier on behalf of appellant (defendant no. 4). Moreover, the appellant had deposited the cost to the Bar Association for expenses to be met over holding of Lok Adalat. So there was no occasion to reject the W. S. by order dated 20th December 1989 (Annexure -2 Series). So when the lower court adjourned the suit on 20th December 1989 for ex parte hearing, this order was illegal because the suit could not be fixed for ex parte hearing, when already there was W. S., even though it was rejected. On this ground, the appellant has challenged the order passed in Misc. Case No. 2 of 1992. which was preferred under Order IX Rule 13 C.P.C.

(3.) SO far the question whether the court was justified in placing the suit for ex -parte hearing by order dated 20th December, 1989, it transpires on perusai of the ordersheet dated 4th December 1989 and 20th December 1989 (Annexure -2 Series) that payment of cost of Rs. 70/ - was of course a condition precedent for acceptance of W. S. filed by the appellant -defendant. The order -sheet dated 4th December, 1989 reads like this: