Roy, J. - (1.) This is a civil revision Under Sec. 25 of Small Cause Courts Act by Laxmi Chand who was Defendant No. 1 in the Court below. The revision came up before a learned single Judge of this Court who, on account of the decision in Pitamber Prasad v/s. Sohan Lal, 1956 AWR (HC) 824 has referred it to a Division Bench.
(2.) The facts may be briefly stated. In July, 1951, the suit was instituted in the court of Small Causes for recovery of a sum of Rs. 670. It had a chequered history. Ultimately the case was fixed for hearing on 20 -9 -1954. On that date upon a motion of Defendant No. 1 on the ground that his counsel was ill and was therefore not in a position to conduct the case on his behalf, the case was adjourned to 8 -11 -1954. Before that date was reached, the court found that the date fixed was far off date and the case was an old one. The court therefore altered the date suo motu to 11 -10 -1954, by order dated 23 -9 -1954. The order was communicated to counsel for both parties and was either signed by them or by their clerks. On 11 -10 -1954, when the case was called on for hearing Defendant No. 1 was found absent and his counsel stated that he had no instruction.
(3.) The Court therefore proceeded to examine the witnesses of the Plaintiff and to decide the suit on merits under the provisions of O. XVII, R. 3, CPC. The court specifically stated: This case was fixed for hearing on 20 -9 -1954 when on the motion of the Defendant No. 1 it was adjourned to 8 -11 -1954. Then on 23 -9 -1954 the court ordered that as the case was very old it shall come for final hearing on 11 -10 -1954 instead of 8 -11 -1954 and this order was duly communicated to all the parties including the Defendant No. 1. Today the Defendant No. 1 has absented himself. It may also be noted that on 27 -7 -1954 the case was adjourned on the motion of Defendant No. 1 subject to payment of Rs. 10 as adjournment costs and the Defendant No. 1 has (?) to pay the costs. In the circumstances I have proceeded u/O. XVII, R. 3 Code of Civil Procedure and the case is being decided on merits against Defendant No. 1 also.;