Decided on December 04,1951

Annada Kumar Appellant
Radhanath Barthakur Respondents


Deka, J. - (1.)THIS is a petition of revision under S. 115, Civil P.C., against an order of the District Judge, L. A. D. dated 14 -7 -1981 setting aside the order of the Munsiff at Gauhati dated 25 -11 -1950 in Misc. case No. 226 of 1950 of the Munsiffs Court.
(2.)THE facts relating to the petition may be shortly stated as follows: The plaintiff Annada Kumar Sen brought a suit for eviction against Radhanath Barthakur with respect to a house situated in the town of Gauhati. The suit was instituted on 11 -5 -1950 and it was decreed ex parte on 25 -8 -1950. The defendant did not appear and filed no written statement. On 7 -10 -1950 the defendant made an application for setting aside the ex parte decree on the ground of his illness and on this petition Misc. Case No. 226 of 1950 was started, which was fixed for hearing on 35 -11 -1950. On that date the defendant was not ready; nor did he apply for an adjournment; but his lawyer only filed his 'Hazira' - - or a list of attendance showing that the lawyer was ready by himself The plaintiff was ready. The learned Munsiff dismissed the miscellaneous proceeding and passed the following order:
Heard the learned advocates. The petitioner has taken no steps except his lawyer's list of attendance. The plaintiff is ready. It is difficult to drag on the case in such circumstance, Hence the prayer for revival is rejected.

(3.)THE learned District Judge allowed the appeal solely on an assumption that the lawyer for the petitioner i. e. the defendant was not heard by the learned Munsiff on the day the proceeding was struck off. The learned District Judge observed in his judgment:
But it does not appear that the learned Munsiff bad asked the appellant's pleader to submit what he had to say in the case on behalf of the appellant. In all fairness the appellant's pleader should have been heard and given an opportunity of submitting the case on behalf of his client, I mean, the appellant. The order -sheet does not show that this was done.

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