MOTILAL RATANCHAND MARWADI Vs. NANDRAM DALPATRAM MARWADI

JUDGEMENT

(1.) The facts which have given rise to this application are these. In Suit No. 468 of 1921 filed by the plaintiff, the defendant was represented by a pleader, a written statement was filed, and the case was adjourned from time to time when the defendant was absent. The case was ultimately fixed for hearing on September 7, 1921, when the pleader was present in the Court, The defendant was absent. At that time the pleader did not ask the Court to adjourn the case, nor did he state to the Court whether he had any instructions to go on with the case; but in face he took no part in the conduct of the suit. The result was that when the plaintiff's evidence was recorded, the Court proceeded to give judgment and passed a decree on that day, It is stated in the judgment that the defendant does not appear to contest the suit.

(2.) Thereafter the defendant made an application to the trial Court on the basis that it was an ex parte decree and prayed that it should be set aside as he was absent for sufficient cause, lie alleged that he was not represented because his pleader had no proper instructions. In other words, he contended that he did not appear on the date of hearing by a pleader duly instructed and able to answer all material questions relating to the suit within the meaning of Clause (b) of Rule 1 of Order V of the Civil Procedure Code. The trial Court rejected this application holding that the case was not decided ex parte because the defendant's pleader was present in the Court at the hearing. The learned Judge further observed: He never said he had no instructions to conduct the case. After framing the issues the case was fixed for evidence. On that date the defendant's pleader was present but he did not Bay that ho wan not going to conduct the case. Under these circumstances I do not think it was an ex parte hearing. I need not go on with the merits of the case as I am dismissing the application summarily.

(3.) From this order the defendant appealed to the District Court, but that appeal was dismissed under Order XLI, Rule 11. Apparently the defendant appealed from the decree also, and that appeal which was heard on the same day, was also dismissed under Order XLI, Rule 11.