HARIDAS MUKHERJEE Vs. BIJAY KRISHNA DAS

JUDGEMENT

(1.) NOTWITHSTANDING a skilful and ingenious argument on behalf of the opposite party in our opinion the rule must be made absolute. It appears that on the date fixed a case was called for hearing and an application was made on behalf of the defendant that the suit might be adjourned in order that he might have an opportunity of calling a certain witness. In the circumstances that application was dismissed. Thereafter as there was no appearance on the merits by the defendant the suit was decreed ex parte against him. Thereupon an application was made under Order 9. Rule 13, Civil P.C., for the restoration of the suit. Now, on behalf of the opposite party it is urged that that application was really in two parts (1) with respect to the application for an adjournment in order that the defendant might procure the attendance of the witness and (2) under Order 9, Rule 13, Civil P.C. for an order of restoration upon the footing that the defendant could satisfy the Court that he had sufficient cause for not appearing when the suit was called. The application by the defendant, however, was not and did not purport to be, an application otherwise than under Order 9, Rule 13, Civil P.C. Nevertheless assuming in favour of the opposite party that it amounted in substance to an application under Order 151, Civil P.C., in so far as it related to the application for adjournment, in my opinion, that application under Section 151 was rejected and rightly rejected by the learned Munsiff. In so far as the application was one for restoration under Order 9, Rule 13 the learned Munsiff held that no sufficient cause had been shown for the non- 2 of 2 appearance of the defendant. There were ample grounds upon which he could have arrived at such a conclusion. Nevertheless purporting to act under Order 9, Rule 13, Civil P.C. and notwithstanding the failure of the defendant to bring himself within the conditions precodent to the making of an order under Order 9, Rule 13, Civil P.C. the learned Munsiff proceeded to restore the suit upoh certain terms. In my opinion in making an order in that form under those circumstances he was acting without jurisdiction and it would not have been open to him, as has been repeatedly held to apply the provisions of Section 151 (which, indeed he did not do) where there is a specific provision in the Code applicable to the case in hand. In those circumstances, in my opinion the rule must be made absolute and the order of 7 May 1929 discharged. The applicant is entitled to his costs. The hearing fee is assessed at two gold mohurs. Patterson, J.

(2.) I agree.