DAROGA SINGH Vs. AMIN MIAN

JUDGEMENT

(1.) This appeal by the defendants arises out of an adverse order passed on their application filed under Order 9, Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree passed in a partition suit on 19-1-1971. The appellants who were some of the defendants had entered appearance and filed their written statement and, as it appears from the order sheet which was placed before me by learned counsel for them, they were prima facie also diligent on all the dates.

(2.) Issues were settled on 23-11-1970 and on 6-1-1971 no step was taken on their behalf and on that very day the court directed for taking up the suit ex parte and fixed for ex parte hearing on 19-1-1971. On this day 'hazri' was filed on their behalf but, according to their case, appellant No. 1 who was looking after the case and who had come to attend the court on 19-1-1971 suddenly developed colic pain in his stomach and could not attend the hearing and the suit was taken up for ex parte hearing and decreed on that very day. The application under Rule 13 of Order 9 was filed on 29-1-1971 explaining the reason for his absence as mentioned above, which was controverted by the plaintiffs in their rejoinder,

(3.) In support of their case the appellants examined appellant No, 1 as A. W. 1; a resident of an adjacent village as A. W. 2, who is also said to have come to attend the court in his own case on 19-1-1971, to support them on the point of indisposition of appellant No. 1; and a pleader's clerk, A. W. 3, on whose seat the appellant No, 1 claims to have been lying being taken ill on that day. On behalf of the opposite party-respondents, however, only one of the plaintiffs examined himself as Order W. 1 who stated that appellant No. 1 had not come On 19-1-1971 to the court and a falsa hazri was filed on his behalf.