REWATI RAMAN SHARMA Vs. B K SWAMI

JUDGEMENT

(1.) THIS is a plaintiff landlord's revision under Section 115, CPC, which arises in unusual circumstances.

(2.) A suit for eviction was filed on February 1, 1968 on certain grounds permissible for eviction of the defendant -tenant. The defence of the tenant was struck out on March 9, 1973. The case was then fixed for evidence on November 8, 1973. On that day the plaintiff's evidence was recorded and closed. The defendant was absent on that day and, therefore, the plaintiff's witnesses were not cross -examined. The trial Court even then fixed the case for recording defendant's evidence on December 21, 1973. The defendant was absent even on that day and the case was then adjourned by the trial Court for recording the defendant's evidence on January 29, 1974. In the mean time the defendant preferred an appeal against the trial Court's order dated November 8, 1973 by which the plaintiff's evidence had been closed without cross -examination of the plaintiff's witnesses on account of the defendant's absence. That appeal was dismissed as not maintainable on August 1, 1975. The parties were directed to appear in the trial Court on August 6, 1975. The trial Court's order -sheet dated August 6, 1975 mentions that the case was fixed again for recording defendant's evidence on September 6, 1975 and the defendant was required to take steps within the time allowed for procuring the attendance of his witnesses. Admittedly no such steps were taken by the defendant to produce his evidence on Sept. 6, 1975 and no one even appeared on his behalf in the trial Court on that date. Accordingly that rial Court closed the evidence on September 6, 1975 and decreed the suit on merits in plaintiff's favour on September 10, 1975 on the basis of material present in the record.

(3.) THE trial Court dismissed the defendant's application filed under Order 9, Rule 13 CPC on September 30, 1975 taking the view that the ultimate decision of the trial Court was in these circumstances under Order 17, Rule 3 CPC and, therefore, no application under Order 9, Rule 13 CPC was maintainable.