PIRAG CHAND Vs. FIRM RAMLAL CHANNANMAL

JUDGEMENT

(1.) This revision arises out of an order passed by the learned Addl. Sessions Judge No. 2, Sri Ganganagar dated 18-8-87 whereby the learned trial court has dismissed the application of the petitioner filed U/O. 9 R.7 CPC.

(2.) The facts necessary to be noticed for the disposal of this appeal briefly stated are : that the plaintiff firm Ramlal Chananmal of Sri Ganganagar filed a suit for recovery of Rs. 35360/- against defendant firm Kailash Flour Mill and Oil Mill and the petitioner Shri Pirag Chand on the ground that defendant 2 Pirag Chand gave out himself, as the owner and partner of this shop and it is the defendant 2 who has entered into some contracts with the plaintiff firm prior to 17-4-78 and on that day, after settling the accounts, he executed a 'Rukka' in favour of the plaintiff for an outstanding amount of Rs. 26000/-. It is, therefore, claimed that the plaintiff is entitled to recover this amount along with interest from the defendants.

(3.) The summons of the suit were served on both the defendants. The suit was filed on 24 -3-81 and the summons of the suit were served on the defendants prior to 17-11-81, Shri Bheekam Chand Jain, Advocate put in appearance on behalf of both the defendants including the present petitioner and filed a Vakalat Nama on that date i.e. 17-11-81 and sought time to file the written statement. On 17-12-81, time was sought for inspection of the account-books. After inspecting the account books a written statement was filed on behalf of defendant 1 on 8-2-82 in which it was claimed that Shri Pirag Chand has nothing to do with defendant firm. He is neither a partner of this firm nor the owner of the firm, and, therefore, he has been mis-joined as a party to the suit. It is alleged that defendant 2 Pirag Chand petitioner was advised by his advocate not to file any written statement because he was neither the owner of the defendant firm nor its partner and so he has nothing to do with the dealings of this firm. Accordingly, no instructions were pleaded on behalf of the defendant 2 and it was ordered that the suit be proceeded ex parte against defendant 2. Later, it appears that the suit was transferred for trial by the learned Distt. Judge to the Court of learned Addl. Sessions Judge No. 1, on 14-7-82 and after about three years, the suit was transferred from the Court of learned A.D.J. No. 1 to the Court of learned A.D.J. No. 2 on 25-9-85. It is alleged that no notice of this transfer was given to the defendant 2. Later, it is alleged that the suit was dismissed on 12-2-87 by the learned ADJ No. 2 but it was restored back to its original number and was fixed for the evidence of the complainant on 27-2-87, It is claimed by the petitioner that as no notice of this date was given to him and as such, he could not present himself before the Court on that day. Some evidence was recorded on 27-2-87 and later, the case fixed on 9-4-87. Prior to 9-4-87 i.e. on 6-4-87, this application was filed in which it was contended that Shri Chanan Mal P.W. 1 has stated certain wrong facts about defendant 2 and so it has become essential for defendant 2 to rebut them and, therefore, it was prayed that the ex parte order be set aside and he be, allowed to participate in the proceedings. This application was supported by an affidavit of Shri Pirag Chand. Actually the affidavit that has been filed by Pirag Chand is not an affidavit in the eye of law. Be that as it may, this application was opposed by the plaintiff firm, on whose behalf a reply was filed on 2-5-87 along with an affidavit of Chananmal dated 2-5-87. This affidavit filed by Shri Chanan Mal is also not an affidavit in the eye of law. The learned trial court after hearing both the parties dismissed this application of Shri Pirag Chand petitioner for setting aside the ex parte decree and hence this revision.