LAWS(PVC)-1928-5-81

HABIB BAKHSH Vs. JOHRI MAL

Decided On May 18, 1928
HABIB BAKHSH Appellant
V/S
JOHRI MAL Respondents

JUDGEMENT

(1.) This is an application in revision from an order restoring a case on certain conditions. The suit out of which this application arises had remained pending for a very long time and 9 August 1926, was fixed for its disposal with express direction that it would not be adjourned again. On that date the defendant did not appear in person but a vakil accompanied by a mukhtar-i-khas appeared for the purpose of filing an application for adjournment on the ground that the defendant had suddenly fallen ill and was unable to come from Bombay. The Court in view of its previous order declined to adjourn the case but called upon the defendant to produce his witnesses and offered to examine him on commission. On this the pleader withdrew from the case stating that he had no further instructions to conduct the case. The Court then treated the defendant as absent and proceeded to dispose of the case ex-parte and decreed the claim.

(2.) Subsequently the defendant filed an application for seting aside the ex-parte decree. It is this application which was allowed on certain conditions. We are not in this revision concerned with the propriety of the Subordinate Judge in restoring the case. The only point is whether he has acted without jurisdiction or with material irregularity in the conduct of the proceedings.

(3.) The learned advocate for the applicant contends that the appearence of thevakil and the mukhtar-i-khas amounted to an appearance of the defendant and the case, therefore was not disposed of ex-parte but was disposed of under 0. 17, Rule 3 and that, therefore the Court, had no jurisdiction to treat that decree as an ex-parte decree and had no jurisdiction to restore the case. He relies particularly on the Explanation to Order 17, Rule 2, which has been added recently.