G.C. Mital, J. - (1.) AT one time the parties to this litigation were partners. While according to the Plaintiff the business was left with him on dissolution of partnership, but according to the instructions of the counsel for the Defendant, the Defendant was left as the sole surviving owner to run the business. In the suit the Plaintiff wanted to restrain the Defendant from carrying on the business, which was filed on 3.9.1982. Notice of the suit was issued for 14.10.1982. Since none appeared on behalf of the Defendant, ex -parte proceedings were ordered. On 19.11.1982, the Plaintiff produced one witness and closed his evidence. At that stage the memo of appearance was filed by Shri Mukesh Ahluwalia Advocate on behalf of the Defendant. Regarding that memo the Court observed that there was no power of attorney and unless ex parte proceedings were got set aside, no action could be taken on that. The case was adjourned for 30.11.1982 for arguments. On 30 -11.1982 none was present before the Court and the following order was passed. Present: None. As none has appeared on behalf of the Plaintiff to address the argument, I will study the case myself and would announce the decision on 1.12.1982.
(2.) ON 1.12.1982, the suit was decreed as prayed for. The Defendant filed an application on 21.12.1982 for setting aside the ex parte decree and the proceedings and it was mentioned that along with the summons copy of the plaint was not served on him and that there was sufficient ground for his non -appearance. That application has been dismissed by the trial Court by order dated 2 -2 -1984 which order has been upheld by the lower Appellate Court. This is Defendant's revision. The point of dispute between the parties is a serious one as to who is entitled to run the business. For the decision of such a suit the trial Court should have seen whether the summons, which was served on the Defendant for 14.10.1982, was accompanied with the plaint or not. The report of the process server shows that only copy of the summons was handed over to the Defendant and it was not accompanied with any copy of the plaint. The Appellate Authority has met with this fact by saying that on 19.11.1982 Shri Mukesh Ahluwalia, Advocate, had put in appearance on behalf of the Defendant and, therefore, it is deemed that he knew about the case. The order for proceedings ex parte had already been passed on 14.11 1982, therefore, his appearance did not improve the case for the Defendant. The Defendant could get opportunity to file the written statement only after the order dated 14.10.1982 was revoked by the Court. Hence, the ex parte proceedings taken by the Court below deserve to be set aside including the ex parte decree,
(3.) THE decision of the court below also suffers from grave infirmity because it has applied different yardsticks between the parties. In spite of the fact that the Defendant was not served with a copy of the plaint, proceedings were not taken in his presence and when Shri Mukesh Ahluwalia, Advocate, wanted to join the proceedings he was not allowed to do so. On the other hand, on 13.11.1982, when the case was posted for arguments, the Plaintiff or his counsel did not appear, instead of dismissing the suit in default the court proceeded to record an order that it would examine the file itself and fixed the case for 1.12.1982 for orders. It cannot be disputed that under Order 9, Rule 3 of the C.P.C., the Court was not obliged to dismiss the suit in default and could postpone the hearing of the suit, but the Court had no jurisdiction to say that it will examine the file itself later on and would pronounce the orders on 1.12.1982. Order 9, Rule 3 of the Code of Civil Procedure does not give such a jurisdiction to the Court to consider the file in the absence of the parties in the manner it has been sought to be done in this case. Hence, on this ground also the order cannot be sustained.;