ASHU LAL SARAOGI Vs. HAJI SK EBADAT HUSAIN

JUDGEMENT

(1.) This appeal by the defendant is from a decree of the Court below passed ex parte against him in the suit filed by the plain tiff-respondent for foreclosure. Two points were urged in support of the appeal by the learned advocate for the appellant: (i) that the time petition filed by the parties on the 16th July, 1962, ought not to have been rejected and the suit ought not to have been taken up ex parte on that date; and (ii) that even on the materials produced at the ex parte hearing the decree is erroneous, illegal and fit to be set aside.

(2.) Since we are inclined to accept the first submission made on behalf of the appellant, it is not necessary to express any opinion on the second point.

(3.) The title suit, on the basis of a document said to have been executed by the defendant on the 28th November, 1943 was filed on the 6th September. 1961. The written statement filed by the appellant was accepted by order No. 6 dated the 28th February, 1962 and issues were also settled on that date. The suit was adjourned to the 28th March, 1962 for fixing a date for hearing. On this date by order No. 7 the date for hearing fixed was the 19th April, 1962, on which date both sides filed separate petitions for time. The suit was adjourned to the 14th May, 1962 for hearing. On the 26th April 1962 the plaintiff filed a petition stating that he was very old and was laid up with blood-pressure and heart trouble; as such, he prayed that he may be examined on commission. This application was directed to be put up for orders on the date fixed. On the date fixed, that is, on the 14th May, 1962, the plaintiff filed hazri, which was not the hazri of the plaintiff but of somebody on his behalf, because the petition filed for his examination on commission was still pending to be disposed of. The defendant filed a petition for time on the ground that he had to summon witnesses. The case was adjourned to the 20th June 1962 for hearing. The plaintiff's petition dated the 26th April, 1962 for his examination on commission was directed to be considered when moved. On the 20th June, 1962, again hazri of somebody was filed on behalf of the plaintiff. It is clear from the records of this case that hazri of the plaintiff himself was not filed, as his petition for his examination on commission was still to be disposed of. On defendant's petition for time the suit was adjourned to the 12th July, 1962, for hearing. The plaintiff's petition was not moved and it was again directed to be considered when moved. On the 12th July, 1962, a petition for time on behalf of the plaintiff was filed on the ground that he was suffering from high blood-pressure. The defendant prayed for time on the ground that his witnesses had to be summoned as they were not willing to come without summons. The time petitions of both the parties were rejected and they were directed to get ready but on their pressing for tune the suit was adjourned for peremptory hearing on the 16th July. 1962. On this date, however, parties filed a joint petition tot time to compromise the suit. The prayer for time was rejected and the parties were asked to get ready at once. The plaintiff got ready and without moving his petition for his examination on commission he examined himself at the ex parte hearing as P. W. 1. The defendant's lawyer not being in a position to cross-examine either P. W. 1 or his only other witness (P. W. 2) declined to cross-examine them. The suit was decreed ex parte on the 17th July, 1962.