S.K.Mookherjee, J. - (1.) This Revision has been directed against the judgment and order dated 8th January, 1991 passed by the Full Bench under section 38 of the Presidency Small Causes Court Act.
(2.) The plaintiff filed a suit for recovery of a sum of Rs. 7,482/- and also of interest thereon against the defendant. The defendant, however, paid the principal before service of summons upon him by cheque was encashed by the plaintiff. In the written statement the defend asked for disposal of the suit on full satisfaction on the ground that the claim had been satisfied. The plaintiff filed an application for recording such and for proceeding with the suit for realization of interest. Since on fixed, defendant was not present, Trial Court fixed 6.9.89 for the order. The trial Judge rejected the plaint for extinguishment of the action in the absence of the defendant against the plaintiff. The preferred an application under section 38 of the Presidency Small Causes Court Act. Full Bench allowed the application, set aside the judgement the trial court and remanded the case to the trial Judge for disposal according to law. The defendant being aggrieved by the said order of Full Bench preferred this Revision.
(3.) The judgment of the Full Bench has been attacked on a very point. In order to appreciate the argument advanced on behalf of the defendant-petitioner, reproduction of section 38 of the Presidency Small Causes Court Act is necessary :- "New trial of contested cases-Where a suit has been contested the Small Cause Court may, on the application of either party, mad eight days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure) order a new trial to be held, or alter, set aside or reverse the c order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. Explanation--Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.";