BIKARMA KOERI Vs. GOPAL PRASAD CHAMADIA

JUDGEMENT

(1.) This application by defendants is directed against an order of the trial court dated the 13th January, 1972, in the following circumstances:

(2.) During the pendency of the suit instituted by the plaintiff opposite party for evicting the defendants, an order under Section 11-A of the Bihar Act III of 1947, was passed on the 6th Oct., 1966, directing the defendants to deposit rent in the manner ordered. On the 24th June, 1969, the plaintiff had filed an application praying that the defence of the defendants against ejectment may be struck off for non-compliance of the order dated the 6th October, 1966. The matter was taken up by the court on the 30th June, 1969, and the defence against ejectment was struck off on hearing counsel for the plaintiff. The defendants had not appeared at that stage to contest the plaintiff's application. On the 24th July, 1969, the defendants filed an application for recalling the order dated the 30th June, 1969, but this application was dismissed for default on the 12th September, 1969. On the 15th January, 1970, the defendants again filed an application for recalling the order dated the 30th June. 1969. This application failed on the 13th January, 1972 (sic). It appears from the order of that date that the suit itself was going to be taken up for hearing, when an application for adjournment of the suit was filed on behalf of the defendants. This application was rejected by the court. Thereupon, the application filed on the 15th January, 1972 was pressed and the court's attention was drawn on behalf of the plaintiff to the order dated the 12th September, 1969, by which the earlier application of the defendants was dismissed for default. In such circumstances, the court below has held that the defendants had pressed their application of the 15th January, 1970, only for the purpose of getting an adjournment of the suit itself, which matter had been dealt with by the court.

(3.) Learned counsel for the petitioners has submitted that the court below has refused to exercise jurisdiction in not considering the defendants' application filed on the 15th January, 1970, on merit, and, therefore, the impugned order ought to be set aside. I do not think that there is any validity in the contention. The facts and circumstances mentioned above speak for themselves and when the defendants had defaulted twice, once, on the 30th June, 1969, and then on the 12th September, 1969, in putting forward their case, the Court below was right in taking into consideration the fact that their first application dated the 24th July. 1969, had stood dismissed for default on the 12th September, 1969. I do not think that there is any question now of refusal to exercise jurisdiction by the court below. The civil revision application must, therefore, fail and it is dismissed and the order of stay is vacated.