UNION OF INDIA Vs. MANGILAL JAIN

JUDGEMENT

(1.) THIS appeal is brought on behalf of the defendant, the Union of India, against the order of the Additional Subordinate Judge of Hazaribagh, dated 23 -5 -1955, dismissing an application under O. 9, R. 13, Code of Civil Procedure, for setting aside an ex parte decree granted in Money Suit No. 10 of 1952 instituted by the respondent. The ground upon which the lower Court dismissed the application was that there was no sufficient cause made out on behalf of the defendant for not appearing on the date when the suit was called on for hearing. Having heard Counsel for both the parties in the matter and having perused the order of the lower court in the case we are satisfied that the appellant had made out sufficient cause under Order 9, R. 13, for not appearing in the suit when called upon for hearing.

(2.) IT has been found by the lower court that twp important witnesses for the defendant, namely, Mr. P.S.R. Murthy and Mr. C.H. Goudin, could not attend court on the date fixed. The case of the defendant was that both these witnesses were ill, and evidence was given by Mr. Murthy to that effect in court.We are also satisfied from the evidence that the other witness, Mr. C.H. Goudin, was also ill and he could not attend court on that ground on the date fixed for giving evidence on behalf of die defendant. It also appears that important documents relating to consignment had been filed on behalf of the defendant in other courts in connection with certain cases pending at Comibatore and Daltonganj and for this reason these documents could not be produced at the time of the hearing of the suit. An application was made by the defendant for adjournment of the suit on 31 -3 -1955, but the application was rejected and the suit was decided ex parte against the defendant. We are opinion, in the circumstances of the case, that the application under O. 9, R. 13, should Have been allowed by the lower court and the money suit should have been restored to the file For being heard and disposed of in accordance with law.

(3.) WE accordingly allow this appeal, set aside the order of the Subordinate Judge of Hazaribagh, dated 23 -5 -1955, and direct that Money Suit No. 10 of 1952 should be restored to file for being dealt with in accordance with law. This order is subject to the condition that the appellant deposits a sum of Rs. 200/ - as costs in the High Court payable to the respondent within six weeks from this date. Appeal allowed.