KRISHNA KUMAR Vs. RAGHUBIR PRASAD YADAV

JUDGEMENT

(1.) This is an application under Section 115 (1) of the Civil P. C. (hereinafter referred to as the Code) against the order dated 4-2-1977 passed by Shri S.N. Sinha, Second Additional Subordinate Judge, Dhanbad, in Misc. case No. 8 of 1976 under Order IX. Rule 13 of the Code setting aside the decree dated 27-7-1976 passed in title suit No. 39 of 1973.

(2.) The facts leading to the present application are that the plaintiff had filed title suit No. 39 of 1973 against defendants Nos. 1 and 2. In the said suit, defendant No. 1 never appeared. But defendant No. 2 had appeared and had filed his written statement. 14-7-1976 was an adjourned date for hearing, when the plaintiff and defendant No. 2 filed their respective hazris and the suit was taken up for hearing. On that date one witness on behalf of the plaintiff was examined who was also cross-examined on behalf of the defendant No. 2 and thereafter the said witness, who had also proved certain documents, was discharged before lunch recess. When however, the further hearing of the suit was taken after the lunch recess, neither the lawyer for the defendant No. 2 nor any person on behalf of the defendant No. 2 was present and an unstamped petition was filed on behalf of defendant No. 2 for adjourning the trial of the case which was, however, not even moved and the lawyer for the defendant No. 2 also did not turn up even though he was informed by the peon of the Court. The unstamped petition was, therefore, rejected and the defendant No. 2 was directed to get ready to proceed with the case by 3 P. M. Later on when further hearing of the suit was taken up at 3 P.M. only the plaintiff was present but the defendant No. 2 was not present and one more witness was examined on behalf of the plaintiff who proved certain documents, and, since nobody appeared on behalf of the defendant No. 2 to cross-examine him, the witness was discharged. Thereupon the plaintiff's case was closed and argument was heard on behalf of the plaintiff and the suit was adjourned to 22-7-1976 for judgment.

(3.) In the meantime on 19-7-1976, defendant No. 2 filed a petition with a prayer to allow him to examine his witness to which a rejoinder was filed by the plaintiff on 20-7-1976 and on 22-7-1976 the defendant No. 2 filed another petition for recalling the plaintiff's witness for cross-examining him. After hearing the lawyers of both sides the prayer of defendant No. 2 for permission to cross-examine the witness of the plaintiff and to lead evidence was rejected by order dated 24-7-1976. Thereafter on 27-7-1976 the judgment was delivered decreeing the plaintiff's suit against both the defendants which was, however, described in the judgment as ex parte.