BALDEV TRIBHUVANDAS GUJAUATI Vs. BALDEVDAS DWARKADAS

JUDGEMENT

(1.) The learned Judge of the Small Causes Court heard. this suit as ex parte, because the defendant did not appear on the 15 December 1908. It is true that the defendant had been ordered on the 24 of November 1908 to appear on the 9 of December 1908. On that date, however, his pleader represented to the Court that he was ill and so the case was adjourned for the defendant's appearance to the 15 of December 1908. On that date again the defendant failed to appear on the ground of illness, and the Court declined to grant any further adjournment, holding that as he had failed to attend or to satisfy the Court that he was prevented by sufficient cause from attending, the suit should be heard ex parte. But there is no law which warranted this Order merely on the ground of failure of the defendant to appear under the circumstances above-mentioned. Prom the beginning the defendant had appeared by his pleader on all the days on which the case had been taken up. The summons served upon him was to appear either by himself or by his pleader, and his pleader was present on the 9th December 1908. Of course, the Court could have taken steps to secure the personal attendance of the defendant under Section 66 of Act XIV of 1882, then in force. But it was not under that section that the defendant was asked to appear. All that was done was that the plaintiff having required the defendant to appear as his witness, the Court directed that the defendant should appear.

(2.) Now in the first instance the practice of the plaintiff summoning the defendant as his witness and vice versa has been condemned very frequently by this Court and has been recently Reference appears to be to the case of Kishori Lal V/s. Chunni Lal See 1 Ind. Cas. 128 5 M.L.T. 58 : 9 C.L.J. 172 : 13 C.W.N. 370 : 11 Bom. L.R. 196 : 31 A. 116 : 19 M.L.J. 186. Ed. condemned by their Lordships of the Privy Council who have pointed out that the practice ought not to be countenanced on any account.

(3.) But apart from that irregularity there is no section of the Civil Procedure Code which justified the learned Judge of the Small Cause Court in treating this suit as ex parte.