A.P. Srivastava, J. - (1.) This first appeal from order has been filed against an order of the 2nd Civil Judge, Kanpur rejecting the appellants' application for setting aside a decree under Or. 9, R. 13, C.P.C.
(2.) The facts leading to the appeal are not disputed. The respondents had filed a suit for dissolution of partnership and accounts. Written statements had been filed and issues had been framed. The hearing of the case started and no less than 21 witnesses were examined on behalf of the plaintiffs till the 23rd of August, 1960. The 22nd witness for the plaintiffs was one Sri Yograj, a Hand Writing Expert. His examination in-chief started on 23-8-1960. The defendants' counsel at that stage of the case made an application that for a more effective cross examination of the witness it was necessary for him to. inspect certain Bahi Khatas of the plaintiffs. It was therefore prayed that the remaining part of the statement of the witness should be recorded after the Bahi Khatas had been examined. The learned Civil Judge permitted the defendant's counsel to inspect the Bahi Khatas on condition that the defendants paid Re. 1 for each Khata that was inspected to the plaintiffs. There were about 200 Khatas which the defendants wanted to inspect. Under the orders of the learned Judge therefore they had to pay 200/- as costs before inspection could be completed. The defendants felt aggrieved with this order .and wanted to move the High Court in revision against it. They therefore moved an application on 1-9-1960 praying that the suit be stayed as they wanted to go up in revision against the order dated 23-8-1960. This application was taken up by the Court on 2nd September, 1960 which was the date fixed for the recording of the remaining portion of the statement of Sri Yograj. Before any order could be passed on this application on 2-9-1960 another application was made by Sri R.N. Srivastava, learned counsel for the defendants. In that application it was prayed that the defendants had an apprehension that they would not get a fair trial from the learned Civil Judge and they wanted to move for a transfer of the case. It was prayed that the hearing of the case be stayed. Both the applications dated 1-9-1960 and 2-9-1960 were, however, rejected on 2-9-1960. What happened thereafter is stated by the learned Civil Judge in the English notes as follows:- "The plaintiff is present with his counsel Sri Babu Ram Misra. I have examined Sri Yograj P. W. 22 the Hand Writing Expert. The defendant's counsel Sri R. N. Srivastava was present throughout during the examination-in-chief of the witness. He has left the Court a few minutes after the examination of the witness was over. No one is now present for the defendants. The plaintiff has no more witnesses to produce today. The defendants are also not present. No one is appearing for them. I, therefore, close the evidence of both the parties. The plaintiff's counsel is required to argue the case." Arguments were then heard for the plaintiffs on that very date, and the next day i.e. 3-9-1960 was fixed as the date for delivery of judgment. On that date the defendants again made an application for stay on the ground that they would move an application for transfer. That application was rejected and the judgment was delivered on 3-9-1960. It covered 11 foolscap pages. The learned Civil Judge considered each issue framed, referred to the evidence and to the arguments on behalf of the plaintiffs and decreed the suit.
(3.) Against the decree so passed the defendants took two steps. They filed an appeal against it. Their appeal is pending in this court but we are not concerned with it at present. They also made an application under Or. 9, R. 13, C.P.C. praying that the ex-parte decree be set aside. That application was opposed on the ground that it was not maintainable. By the order which is subject matter of the present first appeal from order before us the learned Civil Judge rejected the application on the ground that it was not maintainable. He took the view that the suit had been decided in the presence of both the parties on merits, that the decree was not an ex-parte decree and it could not therefore be set aside under Or. 9, R. 13 of the C.P.C. It is contended in support of this appeal that the view taken is erroneous and that the application for setting aside the decree should have been considered on merits. Or. 9, R. 13 of the Code could be attracted only if the decree was an ex-parte decree. It could be an ex-parte decree only if it was passed when the defendants had not appeared in the case on the date fixed for hearing. The question is whether in the circumstances of the case the defendants can successfully contend that on the date on which the suit was heard they had not appeared.;