RADHIKA MOHUN KARMAKAR Vs. SURENDRA NATH ACHARJI

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P.C., by the plaintiff who on 15th April .1937 brought a suit in the Munsif's Court at Naogaon against four men of the opposite parties for a sum of Rs. 305 due under a promissory note executed by the opposite party No. 2 as the managing partner of the firm known as Sulabh Bhandar of which the four persons were partners. Summonses were issued on the four persons and on the opposite party No. 1 the summons was served on 21 May 1937. Thereafter there was a great delay in serving the summonses upon the other parties. But the said summonses having been served, the case was taken up for ex parte hearing on 25 August 1937. It was heard and decreed ex parte. Thereafter opposite party No. 1 filed a petition under Order 9, Rule 13 to set aside the ex parte decree. His case was that he was present on the day when the ex parte decree was passed and he filed a petition asking for time to file a written statement. The office note on it, shows that it was filed after the case was heard ex parte. In his petition under Order 9, Rule 13 he stated that the petition was filed in time but unfortunately it was not filed by the office with the record and that is how it was missed at the time of the hearing of the suit. The learned Munsif on hearing the parties came to the finding that although the defendant did file an Application he was late in the matter as the suit had already been heard at that time. It is urged by the learned advocate for the petitioner that upon this finding the Court of Appeal below ought in law to have dismissed the petition of the defendant. What the Court did was to be kind and sympathetic to the defendant. The Court said that the suit was based on a handnote which was not signed by the petitioner. The petitioner appears to have a good defence and may be given an opportunity of being heard on merits on payment of costs of Rs. 6 to the plaintiff. In this Court an affidavit has been put in on behalf of the defendant in which he has stated that the summons was not duly served on him. The reply is that this defence was not taken either in this petition or in the subsequent application under Order 9, Rule 13. There it was urged that he was prevented by sufficient cause from appearing at the time of hearing.

(2.) IT is urged for the petitioner on the strength of the cases, Haridas Mukherjee V/s. Bejoy Krishna Das and K.B Dutt V/s. Shamshuadin Shah , that Order 9, Rule 13 ought to be strictly construed in the interest of the party who has come into Court and after having served summonses upon all defendants, has got an ex parte decree because the defendants did not choose to appear. Unless the defendant had sufficient cause for not appearing when the case was called on for hearing, the Court has no jurisdiction to set aside an ex parte decree under this Order. Now in the present case we must proceed on the ground that summons was served many months before the date of the ex parte trial and even on that date the petition was put in only for time to file a written statement. Such conduct does not show that the defendant was earnest in defending the suit. A person who neglects his own interest cannot expect leniency from the Court under Order 9, Rule 13. Further the learned Munsif was wrong to set aside the entire decree. At most he could have set aside the decree only as against the person who applied under Order 9, Rule 13. The order of the learned Munsif is set aside and the rule is made absolute with costs; the hearing fee assessed at one gold mohur.