ANIL K.SEN, J. - (1.) This appeal from an original order is by the defendant. The order impugned is one dated April 11, 1981, passed by the learned Subordinate Judge, Asansol, dismissing an appeal under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 225 of 1980. It was so dismissed not on merits but on the ground that such an application is not maintainable. It will be necessary to refer to the facts which may be set out shortly as follows :
(2.) The respondent Abdul Gafur instituted Money Suit No. 18 of 1961 in the Court of the learned Subordinate Judge for recovery of a sum of Rs. 56,237.69 alleged to be the balance dues of the plaintiff for the works done for the defendant company. Though filed in the year 1961, the suit came up for peremptory hearing for the first time on March 28,1978, when one of ther plaintiffs witnesses being examined in part, the suit was adjourned till May 8, 1978. On the adjourned date, the suit was again adjourned in the absence of the presiding officer and the hearing was resumed on October 25, 1979, when the witness earlier examined in part was examined and cross-examined. After that the suit was adjourned to October 28, 1979, for further evidence. On that adjourned date, on the defendant's prayer the suit was adjourned till November 15,1979. On November 15, 1979, on the defendant's prayer again, the suit was adjourned till November 20, 1979.
(3.) On November 20, 1979, the lawyer for the defendant informed the Court that he had no instructions. The defendant did not appear. The plaintiff appeared and examined another witness. On the evidence being closed, the learned Judge heard the argument on behalf of the plaintiff and on November 26,1979, the judgment was delivered decreeing the plaintiffs suit for the amount claimed. In that background that defendant filed an application under Order 9, Rule 13 of the Code on August 26, 1980, and by the impugned order, the learned Subordinate Judge dismissed the said application as not maintainable only on the ground that the suit having been disposed of on its merits and not under O.9 of the Code of Civil Procedure, the defendant had no remedy under O.9, R.13 of the Code. In the admitted facts, the learned Subordinate Judge has relied upon the judgment of a learned single Judge of this Court in the case of Lalit Chandra Das v. Sushil Chandra Guha, AIR 1980 Cal 148, which substantially supports the view taken by the learned Subordinate Judge.;