DUKHIA GANJU Vs. RAMCHANDRA PRASAD

JUDGEMENT

(1.) In Small Cause Court Suit No. 107 of 1963, filed in the court of the Subordinate Judge at Hazaribagh, the plaintiff- opposite party obtained on the 10th of February 1965, an ex parte decree against the defendant-petitioner for a sum of money which was less than Rs. 700. On the 6th of March, 1965, the petitioner, applied to the court below under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. Along with the said application, a duly stamped and properly executed security bond was also filed stating in the 5th paragraph of the application-- "That your petitioner is filing a security bond for the fulfilment of the decree in case the decree stands in the lone run." On this petition, the following order was made on 8-3-1965: "Record received. Register the petition as Misc. Case Serishtedar to check and report regarding the security filed by the applicant on the decretal dues and put up on 15-3-1965. Order No. 2 dated 15-3-65 runs thus :-- "Seristedar report received. Let the security bond be accepted. Issue notice to the O. P. fixing 12-1-65 for filing rejoinder, if any, on filing process."

(2.) The small cause court suit was fixed for hearing on 6-1-1965, on which date the plaintiff filed some applications for taking steps for issue of summonses to his witnesses. His prayer was allowed and the case was adjourned to 9-2-1965 for hearing. On this date again the plaintiff applied for time on the ground that his witnesses had not come on that date. Hazri was filed on behalf of the defendant. Time petition was allowed and, as the order stands, the case was adjourned to 10-2-1965 for hearing, that is to say only a day's time was allowed. The petitioner's case is that his lawyer was informed by Peshkar that the case had been adjourned to 10-8-1965. Accordingly his client was informed. He went back from the court. His case further is that on 15th February, 1965, he learnt that the suit had been decreed ex parte on 10-2-1965. It is important to mention here that when the defendant's lawyer came to know on 10-2-1965 that the case was going to be taken up on that date, he hurriedly flled a time petition stating therein that the case had been adjourned to 10-3-1965 for hearing, but it seems the date had been changed and the case had been fixed for 10-2-1965 Since his client was not present the case should be heard later. It was also stated in the petition that in the Diary (maintained by the court) the original date mentioned was 10-3-1965. This was a serious matter. The court below ought to have examined its diary and found out as to whether the original date mentioned in the diarv was 10-3-1965 or not, The order recorded on 10-2-1965 merely rejects the time petition filed by the defendant. It says not a word regarding the allegation of the original date mentioned in the diary being 10-3-1965 After rejecting this time petition, ex parte decree was passed as the defendant's lawyer naturally could not proceed with his caae in absence of his client.

(3.) The court below has relected the application of the petitioner under Order 9, Rule 13 of the Code of Civil Procedure on two grounds:-- (i) that it has not been proved that the applicant was prevented on account of sufficient cause from appearing in court when the suit was called out for hearing; (ii) that there was non-compliance with the mandatory requirement of the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act (hereinafter called 'the Act'). The petitioner has come up in revision.