MATHURA SINGH Vs. MATHURA PD SINGH

JUDGEMENT

(1.) The appellant has, in this appeal, challenged the decision of the court below rejecting his application under Order 9, Rule 13 of the Code of Civil Procedure. The suit was filed in Barh court by respondent No. 1 for a money decree amounting to Rs. 30,000/- and odd on the allegation that a sum of Rs. 24,000/- had been borrowed by the defendant No. I as the karta of his family in 1966. Other members of his family were impleaded as defendants 2 to 5, out of whom defendants 4 and 5 are minor and were placed by the court under the guardianship of a lawyer. The suit was taken up for hearing on 30-11-1972, when, the parties and their counsel were present in court. However, as the case had been called out late in the day, no evidence was led and the case was put down for further hearing next day. On the 1st of December, 1972, admittedly there was a strike by the advocates for the court in support of a certain political demand and no lawyer attended the court. The plaintiff, however, appeared in person and examined himself as a witness. Two other witnesses were also examined on his behalf without the assistance of a lawyer. Nobody appeared on behalf of the defendants and the court recorded an order in the order sheet, which is included in the paper book at page 13, that in the circumstances the proceeding had to be heard ex parte. Thereafter, the court below decreed the suit ex parte with costs against the defendants by a short judgment recorded in the order sheet. On the very next day, the defendant No. 1 filed, through his counsel, an application under Order 9, Rule 13 and Section 151 of the Code of Civil Procedure which was registered as a miscellaneous case and has been, after contest, dig-missed by the impugned order.

(2.) The court has stated in paragraph 9 of its judgment that admittedly there was a strike by the lawyers but held that in the circumstances the defendant cannot be said to have been prevented by any sufficient cause within the meaning of Rule 13 from appearing in the suit.

(3.) We- have gone through the entire evidence led in the case by the parties. The appellant has examined seven witnesses in-cluding has himself and their evidence fully estab-lished that not only the lawyers of Barh were on strike but their clerks also did not attend the court and did not do any pairavi in heir cases. Several of the witnesses examined are lawyers' clerks themselves. The statement made by O. W. 2 Nawal Kishore Pd. Singh who is also an advocate's clerk that some of the clerks were taking steps by way of pairvi in their cases docs not inspire confidence. According to the oral evidence of the plain-tiff, the defendant No. 1 was personally pre-sent in court but still did not go inside the court room with the object of delaying the hearing of the suit. From the evidence it ap-pears that the defendant was present at Barh on that date and it must be assumed that he attended the court. However, if he was not able to get assistance of his lawyers it cannot be said that he was not prevented by suffi-cient cause in not taking part in the trial of the suit in which a decree for such a large amount of money has been claimed. It is not suggested that defendant No. 1 is well versed in legal matters and could have conducted the trial of the suit by himself. In this circornstance we accept the evidence of A. Ws. and hold that defendant No. 1 was presented from appearing and contesting the suit on 1-12-1972 by sufficient reason and on merits his application should be allowed.