GOVIND RAM AGARWALA Vs. HARSUKHRAI DOSHI

JUDGEMENT

(1.) This miscellaneous first appeal by the defendant under ' Order 43, Rule 1 (d) of the Code of Civil Procedure (hereinafter called the code) has arisen under these circumstances. The plaintiff -respondents filed a mortgage suit, No. 22 of 1961, against the appellant on 10 -7 -64. Order No. 4, dated 25 -8 -64, shows that summons on the defendant was returned after service. Order No. 5, dated 24 -9 -64, records the fact of service of notice of the suit by registered postcard on the defendant. On that date, he appeared through a lawyer and filed a petition praying for time to file written statement. Time till 24 -11 -64 was granted, and further time was granted on that date and on subsequent dates until 5 -1 -65 to file written statement, on which date also the appellant filed a petition praying for time to file written statement. On 5 -1 -65, as order No. 7 shows, the court rejected the time petition and posted and adjourned the suit to 18 -1 -65 "for ex parte hearing". On 18 -1 -65, the appellant again filed a petition praying for time to file a written statement. The petition was rejected and the order passed was. -"Put up tomorrow for ex parte hearing". On 19 -1 -65, the defendant did not appear. The suit was taken up for ex parte hearing as ordered earlier and ex parte decree was passed on 20 -1 -65.

(2.) The defendant thereafter applied under order 9, Rule 13 of the Code for setting aside the ex parte decree, chiefly, on the. ground that the appellant was unavoidably engaged from 15 -1 -65 to 23 -1 -65 in the affairs of the marriage ceremony of his son and as such as he could not come to Dhanbad before 23 -1 -65, and so his lawyer, in his absence, could not take any further step in the case. A rejoinder was filed by the respondents refuting this case of the appellant. The court below did not accept the case of sufficient cause for non -appearance on 19 -1 -65, as put up by the appellant and rejected his application filed under order 9, Rule 13 of the Code; that is to say, it refused to set aside the ex parte decree. Hence, the defendant has come up in appeal to this Court. It may be stated here that the value 6f the suit is more than Rs. 21,000/ -.

(3.) The finding of the court below on the question of sufficient cause was sought to be attacked by the appellant on several grounds, one of which was that the evidence adduced on his behalf in support of his case has not been considered by the court below. But, in the view, which we have taken of the law in this case, we did not proceed to examine this contention of the appellant.