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1 - 3 of 3 (0.19 seconds)The Code of Civil Procedure, 1908
Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963
15. Having regard to the totality of circumstances we are of
the view that in the interest of justice this appeal must be allowed.
The learned District Judge recorded evidence, heard arguments and
posted the matter later in the day for delivery of judgment. If the
Court had adjourned the proceedings to another day after deciding to
proceed ex-parte, the defendant could have applied for being
permitted to participate in the proceedings. In this case since
everything happened on the same day the defendant did not get an
opportunity to do so. The learned District Judge decided to proceed
ex-parte. It thereafter examined the witnesses present in Court and
proceeded to hear arguments. It reserved its judgment to be
pronounced later in the day. Even before he could pronounce
judgment counsel for the defendant had moved an application before
him for recall of the order. It is true that in view of the law laid down
by this Court in Arjun Singh (supra) the learned District Judge could
not have entertained an application under Order IX Rule 7 C.P.C. We
have also no hesitation in observing that counsel of the defendant
were not careful enough to inform the learned District Judge about
their pre-occupation before the High Court which prevented them
from being present in his Court when the case was called for hearing.
But the passing of an ex-parte decree in a case of this nature is too
harsh a consequence to be upheld. The defendant cannot be made to
suffer an ex-parte decree particularly when he was not at fault, having
duly instructed his counsel to appear before the Court of the learned
District Judge.
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