NISHI KUMAR DAS Vs. DURGA CHARAN SAHA ROY
LAWS(GAU)-1970-3-15
HIGH COURT OF GAUHATI
Decided on March 30,1970

Nishi Kumar Das Appellant
VERSUS
Durga Charan Saha Roy Respondents

JUDGEMENT

R.S. Bindra, J. - (1.) Durga Charan Saha Roy, the respondent in the present revision petition, filed Money Suit No. 37 of 1965 against the Nishi Kumar Das, the petitioner herein for the recovery of Rs. 168.75 in the Court of Munsiff, Belonia. The suit was fixed for recording parties' evidence on 21 -5 -1966. Before that date only the evidence of the plaintiff Durga Charan had been recorded on commission. When the case was called on 21 -5 -1966, none put in appearance on behalf of the defendant and so the suit was decreed on the basis of plaintiff's evidence taken on commission. A short while after on the same date, Shri Tadunandan Datta, the Advocate of the defendant, moved an application on behalf of the defendant for setting aside the decree, which he described as ex -parte, and deciding the suit afresh on hearing the arguments of the parties counsel. That application was dismissed on 12 -8 -1966 on the finding that the decree dated 21 -5 -966 was not ex parte, it having been made under Rule 3 of Order 17 of the Civil Procedure Code, hereinafter called the Code, and that as such an application under O. 9, Rule 13 of the Code was not the proper remedy for getting rid of the decree. Having felt aggrieved, Durga Charan Saha Roy went in appeal to the Court of Shri S. M. Ali, Additional Subordinate Judge, Agartala. Shri S. M. Ali differed from the trial Court on the point that the decree had been made under Order 17, Rule 3, of the Code. In his opinion, that provision of the law was not attracted because the suit had been adjourned to 21 -5 -1966 not on the prayer of the defendant but in normal routine by the Court itself. He, therefore, held, speaking virtually, that the suit had been decreed ex -parte. However, Shri S. M. Ali rejected the appeal on 21 -2 -1967 on the finding that the application for setting aside the ex -parte decree had been made not by the defendant himself but by his counsel and that the counsel had no legal authority to do so. The instant revision petition is directed against the orders made by the trial Court on 12 -8 -1966 and the first appellate Court on 21 -2 -1967.
(2.) A reference to the order -sheet of the trial Court brings out that on 7 -5 -1966, the date preceding the one on which the suit was decreed, namely, 21 -5 -1966, the presiding officer of the Court was on leave. On that date it transpired that the Commissioner, appointed for recording the statement of the plaintiff, had submitted his report along with the relevant documents. Some official of the Court made an order adjourning the suit to 21 -5 -1966 for peremptory hearing. It does not take long to conclude that the Court official had no jurisdiction to fix the case for hearing, that being the exclusive privilege of the presiding officer. At the best, the Court official could have adjourned the case to some date for being put up before the presiding officer for proper orders. Therefore, 21st of May, 1966, could not be a date for hearing of the case in the eye of law, and as a consequence the suit could not be taken up by the Court for hearing in the absence of the defendant. It was the legal obligation of the Court to issue notice to the defendant for appearance. The decree made on that date cannot stand. The defendant can legitimately demand that that decree should be quashed and suit proceeded with.
(3.) The order made on 21 -5 -1966 is a brief one and so I am tempted to reproduce it in full. It runs as under: The plaintiff's side present. The defendant absent without taking any step. 1 P. W. has been examined and cross -examined and the case of the plaintiff has been proved. Hence ordered that the suit be decreed on contest for Rs. 168.75 with costs. Evidently, the proceedings in the' Court on 7 -5 -1966 and 21 -5 -1966 do not establish that either the suit had been adjourned on the former date to the latter at the request of the defendant under Order 17, Rule 3, or that it was decreed on 21 -5 -1966 on contest. The defendant made no request to Court on 7 -5 -1966 to adjourn the case to 21 -5 -1966 and so that adjournment would fall under Order 17, Rule 2. The defendant being absent on 21 -5 -1966, the question of contest on his behalf could not arise and as such the Munsiff who decreed the suit was not fair in stating that the suit had been decreed on contest. Hence, I agree with the first appellate Court that the trial Court was wrong in holding that the suit had been decreed under Order 17, Rule 3, and that the proper course for the defendant to follow for challenging the decree made was to go in appeal rather than move an application under O. 9, Rule 13. I therefore feel satisfied that the defendant had the legal right to move an application under Order 9, Rule 13, because the suit must be considered in the eye of law to have been decreed ex -parte despite the recital in the body of the order dated 21 -5 -1966 that it had been disposed of on contest.;


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