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1971 DIGILAW 86 (MP)

Balkishan v. Gokuldas

1971-05-04

P.D.MULYE

body1971
Short Note : 1. The case was fixed for final disposal on 28-2-74 as, on the earlier date, the defendant had sought for time to file the written statement. However, on 28-2-74, the defendant himself did not appear in the Court nor filed the written statement and his counsel submitted an application for adjournment on the ground that the defendant was unable to attend the Court as there was curfew in Dhar for the last three days and that the defendant is not aware that the curfew is relaxed on that day between 10 a.m. and 6 p.m. The learned Small Cause Judge, however, rejected that application, proceeded ex parte against him and, after recording the plaintiff's statement, decreed the suit on the same day. Hence this revision by the defendant. Held : It may be noted that the defendant did not submit any application under Order 9, rule 13, C. P C. for setting aside the ex parte decree nor there is any material on record to show that, on that date of hearing, there was sufficient cause for the non appearance of the defendant-applicant, who chose not to file any affidavit also and the learned Judge has found that, on that day, regular buses were coming from Indore to Dhar and that the reason given by the defendant far his absence was not satisfactory. The learned Judge had the jurisdiction to grant or refuse the adjournment which he has exercised properly, in these circumstances with which no interference is called for. 2. As regards the challenge to the jurisdiction of the trial Court, the defendant-applicant having not filed any written statement nor having challenged it before the trial Court, he cannot be allowed to raise this point before this Court in the absence of any other material indicating prima facie thereby that the trial Court had no jurisdiction to try the case. The plaintiff's statement on oath stands unrebutted. Normally, the defendant ought to have submitted an application for setting aside the ex parte decree stating therein all the facts leading to his absence in the Court On the date fixed i. e. 28-2-74, which remedy he has not availed of and straightway rushed to this Court. In these circumstances, there being no material placed on record by the defendant-applicant to justify any interference with the findings of fact, it is difficult to allow this revision. Revision dismissed.