Haridas Mukherjee v. Bejoy Krishna Das And Ors. Opposite Party.

The Judgment of the Court was as follows:—

Page, J.:— Notwithstanding a skilful and ingenious argument on behalf of the opposite party in our opinion the Rule must be made absolute. It appears that on the date fixed a case was called for hearing and an application was made oil behalf of the Defendant that the suit might be adjourned in order that he might have an opportunity of calling a certain witness. In the circumstances that application was dismissed. Thereafter as there was no appearance on the merits by the Defendant the suit was decreed ex parte against him. Thereupon an application was made under Or. 9, r. 13, C.P.C, for the restoration of the suit. Now, on behalf of the opposite party it is urged that application was really in two parts (1) with respect to the application for adjournment in order that the Defendant might procure the attendance of the witness and (2) under Or. 9, r. 13. C.P.C, for an order of restoration upon the footing that the Defendant could satisfy the Court that he had-sufficient cause for not appearing when the suit was called. The application by the Defendant, however was not, and did not purport to be, an application otherwise than under Or. 9, r. 13, C.P.C Nevertheless assuming in favour of the opposite party that it amounted in substance to an application under sec. 151, C.P.C, in so far as it related to the application for adjournment, in my opinion, that application under sec. 151 was rejected and rightly rejected by the learned Munsif. In so far as the application was one for restoration under Or. 9, r. 13 the learned Munsif held that no sufficient cause had been shown for the non-appearance of the Defendant. There were ample grounds upon which he could have arrived at such a conclusion. Nevertheless purporting to act under Or. 9, r. 13, C.P.C, and notwithstanding the failure of the Defendant to bring himself within the conditions precedent to the making of an order under Or. 9, r. 13, C.P.C, the learned Munsif proceeded to restore the suit upon certain terms. In my opinion in making an order in that form under those circumstances he was acting without jurisdiction and it would not have been open to him, as has been repeatedy held, to apply the provisions of sec. 151 (which, indeed, he did not do) where there is a specific provision in the Code applicable to the case in hand. In those circumstances, in my opinion the Rule must be made absolute and the order of the 7th May 1929, discharged. The Applicant is entitled to his costs. The hearing fee is assessed at two gold mohurs.

Patterson, J.:— I agree.

S.C.M