ABDULLABHAI EBRAHIMJI Vs. ISABHAI NAJMUDDIN

JUDGEMENT

(1.) This is an application on the part of the defendants to set aside an ex parte decree passed by Mr. Justice Rangnekar on March 11, 1932.

(2.) The suit had been filed as a summary suit, and the defendants had obtained leave to defend in 1929, and the suit had gone into the long causes list. It appeared on the daily board of Mr. Justice Rangnekar on March 7, 1932, being sixth on the list. It continued to appear on the daily board of Mr. Justice Rangnekar for some days, It was again sixth on the list of Mr. Justice Rangnekar's board on March 11. That learned Judge, as was known, was shortly to sit. in the Criminal Sessions, and, as is also well known, in such circumstances, a learned Judge may not then be prepared to take up any case which is likely to last a long time. It might, therefore, have been anticipated by solicitors and counsel engaged in any of the cases then appearing on the board that any one of those eases, particularly if short, was likely to be called on and disposed of. This in fact happened, and the present case was in fact called on before Mr. Justice Rangnekar at about 1 p.m. Two counsel had been engaged for the defendants, Mr. Engineer and Mr. K.A. Somjee. Both of them were actually engaged at the time in other Courts, and did not appear. Mr. M.P. Amin, who was engaged as counsel with Mr. Somjee in another case in which Mr. Somjee was actually cross-examining a witness, appeared before Mr. Justice Rangnekar, and applied for an adjournment. The application was resisted by Mr. Billimoria, counsel for the plaintiff, although Mr. Billimoria expressed his willingness to an adjournment until 3 p. m. The learned Judge, however, expressed his unwillingness to take up this case if he was at 8 p. m. engaged in another case then partheard; and upon that Mr. Billimoria refused to consent to an adjournment to any other day. Thereupon the learned Judge refused the adjournment. Mr. Amin withdrew from the case, and the ex parte decree was passed. At 3 p. m. on the same day, Mr. Somjee applied to the learned Judge for restoration of the 6uit, but he informed Mr. Somjee that the defendant should make an application in the regular manner by notice of motion.

(3.) In the joint affidavit of Easabhai Najmuddin Chinwalla and two others dated March 17, 1982, it is alleged that it was physically impossible for either of the counsel briefed for the defendants to appear when this case was called on, that neither of them could have reasonably anticipated that it would be called on in the course of the day, that the defendants were prevented by sufficient cause from appearing when the case was called on, and that the ex parte decree should be set aside. Mr. Engineer has referred me to three authorities, Bilasirai V/s. Cursondas , Lalta Prasad V/s. Ram Karan (1912) I.L.R. 34 All. 426, and Sorabji v. Ramjilal , and he has asked me to restore the case by virtue of the powers conferred upon the Court by Order IX, Rule 13-alternatively, under the inherent powers of the Court.