APPAVOO ASARY Vs. SORNAMMAL FERNANDEZ

JUDGEMENT

(1.) The appellant brought the suit for payment for work done by him for the 1st defendant's deceased husband Cruz Machado who was a merchant in Tuticorin. His case was that he was engaged by the 1 defendant's husband to work in his salt pans and on some schooners, a bungalow, sheds, etc., and that he had settled accounts with Machado up to August, 1917. Further dealings began on the 10 of February, 1918 and went on during the lifetime of Cruz Machado who died some time in July, 1922. The plaintiff then approached the 1 defendant, his widow, who asked him to go on with the work and he did so till the 7 of March, 1923. There was a settlement of accounts between himself and the 1 defendant attempted by P. Ws. 2 and 3 from which nothing resulted. Consequently the suit was launched for the recovery of the amount due to the plaintiff and Rs. 2,736-4- 11 was claimed as due.

(2.) The trial began on the 15 April, 1926, and was transferred to the Court of the District Munsif of Tuticorin and was taken up there on the 22nd June, 1926. The case was heard on the 23 March, 1926, 29 June, 1926 and 10 July, 1926, by which time nine witnesses on the side of the plaintiff had been examined and certain exhibits filed. On the 15 April, 1926, the plaintiff had made an application under Order 3, Rule 1 and Section 151, Civil Procedure Code, praying that the Court should issue an order directing the 1 defendant to appear before the Court; and this was accompanied by an affidavit in which he said that the 1st defendant knew about the matter and could speak the truth, but she was being kept back by Seshayya Fernand, her father. On this, the Court passed an order on the 2nd of August, 1926, that the 1 defendant should appear in Court on the 5th of August, 1926. She did not appear on that date. The suit was adjourned to the next day. On that day an application was put on behalf of the 1 defendant asking that there should be stay of execution and consequence's of the order of Court, dated the 2nd August, 1926, and that her appearance should be excused for two weeks or any reasonable time the Court might grant. The Court by its order passed that day dismissed this petition and under Order 9, Rule 12, struck out the defence of the 1 defendant The entry in the B Diary on that date is as follows: 1 defendant does not appear. There is therefore no appearance of defendant. The Court will proceed as stated in Order 9, Rule 12, Judgment reserved.

(3.) The District Munsif proceeded to deliver the judgment on the next day., He rejected the greater part of the plaintiff's claim holding that the plaintiff's evidence was "untrustworthy, that his accounts had been cooked up and that the agreement set up with, 1 defendant had not been made out; but; on the evidence of P.W. 2 that the 1 defendant had offered to pay Rs. 500 he gave the plaintiff a decree for that amount. " Both sides appealed and the lower appellate Court allowed the 1 defendant's appeal and dismissed the plaintiff's suit with costs throughout. Against that judgment the plaintiff has preferred this second appeal.