G.K.Mitter, J. - (1.)This is an application for setting aside an ex parte decree passed on 6-4-1955, and for restoration of the said suit to the peremptory list to be re-heard by this Court.
(2.)In this suit the plaintiff claimed a decree for Rs. 8,100/- on account of arrears of rent, Interest and costs. The suit was instituted in 1950. It appeared in the warning list on 2-4-1955, according to the applicant and on 1-4-1955 according to the respondent. The defendant had also filed a suit against the plaintiff herein in the year 1951 being suit No. 1124 of 1951, claiming a sum of Rs. 22000/-. On 2-4-1955 the attorney for the defendant Sri B. B. Ghose wrote a letter to the Registrar of this Court as follows:
"The above suit, I find is appearing in the warning list of His Lordship the Hon'ble Mr. Justice G. K. Mitter. The above suit as also the suit No. 1124 of 1951 (Rambadal v. Tulsiram) filed by my client against the defendant Tulsiram Shaw, are cross suits and as such the same should toe tried together. The second mentioned suit is also ready for hearing for a long time. Please therefore be good enough to direct your Board-maker to place the above two suits in the list of His Lordship the Hon'ble Mr. Justice G. K. Mitter one after the other and oblige."
On 5-4-1955 Mr. Ghose wrote to Messrs. T. Banerjee and Cov., enclosing a copy of the above letter and stating: "I trust you will agree with me that the above suit as also the suit No. 1124 of 1951 (Rambadal Sambhunath v. Tulsiram Shaw) should be tried together Inasmuch as one cannot be heard without the other. I am also instructed to state, that my client is now in Vindhyachal in connection with a Mundan Ceremony of his family members and la expected back to Calcutta some time next week. In the circumstances aforesaid, my client's counsel will ask for a short adjournment of the above suit tomorrow the 6th instant at 10.30 a.m. till one week after the Easter Holidays to which I trust you will be so good as to consent" The suit actually came into the peremptory list on 5-4-1955. On the 6th April the suit was called on for hearing when adjournment was asked for by learned counsel appearing for the defendant; on such adjournment being refused counsel retired from the case and the suit was decreed ex parte.
(3.)The case made by the petitioner is that he had left Calcutta on 21-3-1955 for Vindhyachal in connection with Mundan Ceremony of his grandson. Soon after his arrival there he was attacked with Influenza and Bacillary dysentery and was confined to bed. The petitioner, it is alleged, was under the treatment of one Gopinath Misra, a practising Vaidya. This gentleman has affirmed an affidavit herein to the effect that Rambadal Sambhunath was under his treatment from 30th March to 10th April 1955 and he was advised complete rest and as such was unable to return to Calcutta within that period. The petitioner also states that during his absence there was no responsible person at Calcutta who could give evidence on his behalf. It is stated that his Munib one Mahesh Prosad was also away at Gamar, District Gazipur, U. P., to attend the Sradh Ceremony of his mother.