BHAGWANDASS Vs. BANSHIDHAR

JUDGEMENT

(1.) THIS is a defendant's revision application under section 25 of the Provincial small Cause Courts Act against ex parte decree passed by the Judge, Small Cause court, Ratangarh.

(2.) THE first ground is that the learned Judge erred in proceeding with the suit ex parte and that the suit should be remanded so that the applicant may have an opportunity of cross examining the witnesses of the plaintiff and of adducing his own evidence. 17-11-1953, was fixed for the evidence of the plaintiff. On 14-111953, an application for adjournment was made on behalf of the defendant. No order was passed on this application. On 17-11-1953, the defendant did not appear. The court proceeded ex parte against him. The evidence of the witnesses of the plaintiff was recorded on that very day and arguments were heard on 1811-63. Judgment was pronounced on 28-11-53. It was open to the applicant to have applied for setting aside the ex parte decree. He did not avail of that remedy. I am not prepared to interfere in revision on that ground in the circumstances of the present case.

(3.) THE next point urged is that the suit was not of a small cause nature being excluded under Article 31 of the Second Schedule from its cognizance. The question for determination is whether the present suit is an account suit within the meaning of Article 31. The case of the plaintiff is that acting as the agent of the defendant he received a consignment of 100 bags of wheat on 20-7-51 and 50 bags of barley on 8-8-51 from him and sold them on his behalf on commission basis. He paid a sum of Rs. 6300/- to the defendant through two Hundis and claimed a decree for Rs. 182/14/3 on the allegation that the amount spent by him on railway freight and the amount due to him as commission came to Rs. 433. The allegation of the defendant was that several similar other trans actions took place between the parties and that ac counting had not yet been done. There is however no evidence on record to show that any other trans action besides the two in suit took place between the parties. On behalf of the applicant the cases of Abdul Rahiman Rowither v. Jamalluddin sahib and Co. , AIR 1938 Mad 799 (A), Mariappa Nadan v. Aruna-chalam Chetty, 33 Ind Cas 16 : (AIR 1917 Mad 476) (B), and Gurudasi Devi v. Chandi Charan, air 1952 Cal 736 (C), were cited. In the first two cases it was held on facts that it was necessary to take accounts and on that findings the Courts came to the conclusion that the suits were account suits within the meaning of Article 31. In the last mentioned case the plaintiff himself had asked for an account from the defendant. This is not the case here. These cases are therefore distinguishable. On behalf of the respondent four cases viz. Mahadcvi v. Sankara Menon, AIR 1940 Mad 504 (D), Raley Din Gupta v. Bengal Immunity Co. Ltd. , AIR 1948 Oudh 80 (E), Rajiva Narayan Sahay v. Kirat nara-yan Singh, 43 Ind Cas 755 : (AIR 1917 Pat 121) (F), and Kshetra Nath bhuiya v. Kalidasi Dasi, 41 Ind Cas 929 : (AIR 1918 Cal 1037) (G), were cited. These cases are applicable to the facts of the case before this Court. It is clear on the authority of these cases that the suit brought by the non-petitioner is not an account suit within the meaning of Article 31 of the Second Schedule of the provincial Small Cause Courts Act.