(FIRM) GANESHI LAL HARNARAIN Vs. DEBI DAS

JUDGEMENT

(1.) This is a defendant's application in revision from an order of the District Judge of Agra. It arises under the following circumstances: On the 7 of July, 1923, a suit was brought in the Court of the Munsif of Agra for recovery of a certain sum of money. On the 24 of July, 1923, a written statement was filed on behalf of the defendant and issues were framed. The 21 of September, 1923, was fixed for final hearing in the case, but on an application made by the plaintiffs the date was subsequently altered to the 17 of August, 1923. On that date the defendants were absent owing to an alleged illness and produced a medical certificate. The Court was prepared to adjourn the case on payment of a certain amount of costs. Readiness was expressed on behalf of the defendants to pay the amount and the Court then directed that it would proceed to hear the plaintiff's evidence and postpone the case for the defendants evidence. Defendants vakil objected to this procedure and ultimately intimated that ha would apply for transfer of the case from that Court. A week's time was granted, but no application was made for transfer. On the 27 of August, 1923, the defendant firm, neither through any-recognised agent, nor through any pleader, put in an appearance. The learned Munsif then proceeded to dispose of the suit. As the defendant had filed a written statement denying some of the Allegations of the plaintiff, and issues had bean framed on the pleas raised, the Court was bound to consider the issues and decide them even if the proceedings were ex parte. The operative portion of the order passed by him was in these words: Suit of the plaintiff for Rs. 547-15-3 is decreed with costs and usual future interest," It is important to note that the judgment did not expressly say whether the Munsif proceeded under Order 17, Rule 2 or Order 17, Rule 3.

(2.) The defendant firm did not prefer an appeal from this decree, but filed an application under Order 9, Rule 13, treating this order to have been passed ex- parte against them. By the time this application came up for disposal the Munsif had been transferred and his successor dismissed the application holding that the previous order had been passed under Order 17, Rule 3, and therefore no application for setting it aside at all lay. The defendant firm no6 being satisfied with this last order preferred an appeal before the District Judge. The learned District Judge entertained the appeal and heard arguments in support of the appeal, but came to the conclusion that the previous order of the 27 of August. 1923, was an order passed under Order 17, Rule 3, and that therefore the order of the Munsif dismissing the application was quite correct. This is an application in revision from this last order of the District Judge.

(3.) The first point which arises before us is whether a revision at all lies from the order of the District Judge. In my opinion even if no revision lies from the order of the District Judge, it is open to us to entertain a revision from the order of the Munsif himself. So far as the order of the Munsif is concerned, I am clearly of opinion that he refused to exercise jurisdiction, provided of course it be assumed that the previous dismissal was under Order 17, Rule 2 and an application to set aside the ex-parte decree was preferred before him. He refused to hear the application on the ground that no application lay under Order 9, Rule 13. If he himself was wrong in his conclusion that no application lay it is clearly a case of a refusal to exercise jurisdiction.