SITA DEVI Vs. TULSI DEVI ETC.

JUDGEMENT

(1.) This is a Defendant's revision petition against an order of the learned District Judge, Simla, dismissing an appeal against the order of the trial court refusing to set aside an ex -parte decree and declining to condone the delay in applying under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex -parte decree.

(2.) The Respondent, Tulsi Devi, filed a suit for possession of land against the Petitioner and the other Respondents. The Petitioner was duly served with notice of the suil and she appointed Shri R.S. Puri, Advocate, as general attorney to represent her in the suit. Shri Puri appeared as her attorney on the dates fixed over a number of months in the suit. During the recording of the evidence he cross -examined the Plaintiff's witnesses but when the occasion arose for producing the Defendant's evidence in April, 1967, he absented himself, and thereafter he did not appear at all in the case. On April 4, 1967, when the Petitioner and Shri Puri were both absent the court decided to proceed ex -parte. On July 11, 1967, an ex -parte decree was made in favour of the Plaintiff. On September 28, 1967, the Petitioner applied under Order 9, Rule 13 of the Code of Civil Procedure tor setting aside the ex -parte decree. The Petitioner alleged that she came to know of the ex -parte decree on September 24, 1967, and urged that there was sufficient cause for setting it aside inasmuch as she had appointed Shri Puri as attorney to contest the suit and that although she had from time to time enquired from him whether her presence was necessary or if arrangements for producing evidence were to be made, he had always put her off with the assurance that he was looking after the case and would let her know when her presence was required. The Petitioner's case was that Shri Puri had colluded with the Plaintiff and allowed the ex -parte decree to be passed. Two issues were struck by the trial court, one of them being whether there was sufficient cause for setting aside the ex -parte decree and the other being whether the application for setting aside the decree was within time. The trial court decided both the issues against the Petitioner and dismissed her application. The Petitioner appealed to the learned District Judge.

(3.) The learned District Judge has considered both the questions, whether there was sufficient cause for setting aside the ex -parte decree and also whether there was sufficient cause for not making an application in that behalf within time. The case of the Petitioner is that her attorney, Shri Puri, colluded with the Plaintiff and she had been a victim of fraud. The learned District Judge has not accepted that case but has proceeded on the assumption that Shri Puri was guilty of negligence, and on the basis that the negligence of the attorney should be considered to be negligence of the party he has held that no sufficient cause has been made out. It seems to me that the learned District Judge has mis -directed himself in law, and because of an erroneous approach in law he has proceeded with illegality and material irregularity in arriving at his decision.