JAGDISH LAL Vs. MADAN LAL

JUDGEMENT

(1.) THIS is a revision by the plaintiff against the judgment of the learned District Judge, Pratapgarh in appeal dated 18th January, 1958 setting aside the exparte decree passed on 31st May, 1955 and arises under the following circumstances.

(2.) THE petitioner filed a suit for recovery of Rs. 3100/- in the court of the Civil Judge, Pratapgarh on 29th August, 1952 against the non-petitioner. After the issues had been framed and part of the plaintiff's evidence was recorded the case was fixed on "25th May, 1955 for the remaining evidence of the plaintiff. On this day neither the defendant nor his counsel appeared and the learned Civil Judge ordered that the suit shall be heard exparte against him. On 26th May, 1955 the plaintiff after examining one witness closed his evidence. Arguments were heard and on 3lst May, 1955 an exparte decree was passed against the defendant. On 7th July, 1955 an application for setting aside the exparte decree was presented on behalf of the defendant on these grounds that he was a resident of Mandsor a place 15 miles away from Pratapgarh where the suit was pending and on 25th May, 1955 he had to go to Indore to attend his brother's marriage and had asked his counsel Shri Sadiq Ali who also hailed from Mandsor by a telegram Ex. 1 to attend the hearing. On 25th May, 1953 Shri Sadiq Ali did not go to Pratapgarh as he was told by Shri Umaidmal Pachawat counsel for the plaintiff that the Civil Judge, Pratapgarh was on leave and would come back on 2nd June, 1955. Defendant on his return from Indore met Shri Sadiq Ali on 31st May, 1955 who explained to him the reason of his not going to Pratapgarh on 25th May,1955 and asked him to go to Pratapgarh on 2nd June, 1955 to find out as to what orders had been passed on that date. He. accordingly went to Pratapgarh on 2nd June, 1955 and met Shri Shiv Narain Gupta a petition writer of that place and requested him to find out as to what had happened in his case on 25th May, 1955 and also the next date fixed in the case. Shri Shiv Narain Gupta told him that the Civil Judge had not gone on leave on 25th May, 1955 and further told him after going towards the court that statement of one witness was recorded on that date and that the rest of the witnesses would now be examined on 2nd July, 1955. He therefore, came back to Mandsor and apprised Shri Sadiq Ali his counsel of what he had learnt from Shri Shiv Narain Gupta. Shri Sadiq Ali then asked him to obtain copies of the statements of the witnesses who had been examined in the case, and also advised him to engage a counsel for Pratapgarh. THE petitioner left these arrangements to Shri Sadiq Ali. Shri Sadiq Ali then went to Pratapgarh on 16th June, 1955 and approached Shri Shiv Narain Gupta and asked him to obtain copies of the statements of the witnesses and further asked him to suggest the name of a lawyer who might be engaged on behalf of the petitioner. Shri Shiv Narain Gupta promised to supply copies of the statements by Sunday next and also suggested the name of Shri Chand Mal Salkhia. Shri Sadiq Ali was also informed By Shri Shiv Narain Gupta that the next date of hearing in the case was 2nd July, 1955. Shri Sadiq Ali then came back to Mandsor. THE petitioner then got a letter written by Shri Sadiq Ali for Shri Jawahar Lal Gandhi a lawyer practising at Pratapgarh and sent a Vakalatnama and Rs. 15/- towards his fees along with one Chhaganlal a clerk of the office of the S. D. O. , Pratapgarh so that Shri Gandhi may appear in the case on his behalf on 2nd July, 1955. It is said that Shri Gandhi on 2nd July, 1955 waited in the court for the case to be called but subsequently he came to know that an exparte decree had already been passed in the case on 31st May, 1955. He therefore, intimated Shri Sadiq Ali vide Ex. 2 that an ex-parte decree had already been passed on 31st May, 1955. This letter Ex. 2 reached the petitioner on 4th July, 1955 and the petitioner thereafter came to Pratapgarh and moved an application for setting aside the exparte decree out of which this appeal has arisen.