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1976 DIGILAW 376 (ALL)

Brij Behari Lal Misra v. Muni Devi

1976-05-17

M.P.SAXENA

body1976
JUDGMENT M.P. Saxena, J. - This is a defendant-tenant's revision under section 115 C.P.C. against the order rejecting his application for setting aside ex-parte decree. 2. Briefly stated the facts giving rise to this application are that the plaintiff opposite party filed a suit for ejectment of the defendant-applicant in which 22nd November, 1973, was fixed for final hearing in the small cause court. On this date the defendant applied for adjournment on the ground of his illness. The application was allowed and 18-1-1974 was used for final hearing. Its information was duly given to the learned counsel for both sides. On 18-1-1974 the defendant and his learned counsel remained absent. Instead of disposing of the suit on that date the court adjourned it to 5-2-1974 for ex parte hearing. On this date again it was adjourned to 19-2-1974 but the Presiding Officer remained on leave and the hearing was adjourned to 26-4-1974. Again on this date the defendant remained absent and plaintiff's evidence was recorded and the suit was decreed on 30th April, 1974. On 17th of May, 1974, the defendant moved an application for setting aside the ex parte decree mainly on the ground that on 22-11-1973 the Reader had given out to Yugesh Kumar who had come for pairvi on 22-11-1973 that another date will be fixed and its intimation will be given to his learned counsel. Yugesh Kumar went away. No intimation of the next date was given to his learned counsel and it is in these circumstances that the defendant remained under the impression that a date will be fixed in his case and he will get its intimation. 3. The learned trial court did not agree with the aforesaid ground and rejected the application. The defendant filed a revision which was also rejected by the learned III Additional District Judge Kanpur. He has now come up in revision to this Court. 4. I have heard the learned counsel for both sides. It is evident from the order passed on the defendant's application for adjournment on 22-1 1-1973 that 18-1-1974 was fixed in the case and its intimation was given to the applicant's learned counsel. He has now come up in revision to this Court. 4. I have heard the learned counsel for both sides. It is evident from the order passed on the defendant's application for adjournment on 22-1 1-1973 that 18-1-1974 was fixed in the case and its intimation was given to the applicant's learned counsel. His contention in paras 4 and 5 of the affidavit that no intimation was given and the Reader had given out that intimation of the date will be given to the learned counsel for the parties when fixed, is far from convincing. 5. The defendant-applicant is inclined to urge that he contacted his counsel and the later's clerk a number of times to inquire about the date fixed but they failed to give any date. Hence there was negligence of mistake on the part of his counsel and clerk and he should not be made to suffer for the same. This contention carries no force obviously because it does not find place in the affidavit filed with the application for setting aside the ex parte decree. As stated above, his learned counsel had already intimation of 18-1-1974 and there is no reason why he should not have disclosed this date, if the applicant had cared to contact him. I am therefore, in agreement that both the learned lower courts were right in holding that no sufficient cause for setting aside the ex parte decree was made out. Besides it, sufficiency of cause is a question of fact. No jurisdictional error has been committed by the learned lower courts in deciding this case. This revision is liable to be rejected on that score also. 6. The revision application is accordingly dismissed with costs on parties.