1. The learned Judge of the Small Causes Court heard. this suit as ex parte, because the defendant did not appear on the 15th December 1908. It is true that the defendant had been ordered on the 24th of November 1908 to appear on the 9th of December 1908. On that date, however, his pleader represented to the Court that he was ill and so the case was adjourned for the defendant's appearance to the 15th of December 1908. On that date again the defendant failed to appear on the ground of illness, and the Court declined to grant any further adjournment, holding that as he had failed to attend or to satisfy the Court that he was prevented by sufficient cause from attending, the suit should be heard ex parte. But there is no law which warranted this Order merely on the ground of failure of the defendant to appear under the circumstances above-mentioned. Prom the beginning the defendant had appeared by his pleader on all the days on which the case had been taken up. The summons served upon him was to appear either by himself or by his pleader, and his pleader was present on the 9th December 1908. Of course, the Court could have taken steps to secure the personal attendance of the defendant under Section 66 of Act XIV of 1882, then in force. But it was not under that section that the defendant was asked to appear. All that was done was that the plaintiff having required the defendant to appear as his witness, the Court directed that the defendant should appear.
2. Now in the first instance the practice of the plaintiff summoning the defendant as his witness and vice versa has been condemned very frequently by this Court and has been recently Reference appears to be to the case of Kishori Lal v. Chunni Lal See 1 Ind. Cas. 128 5 M.L.T. 58 : 9 C.L.J. 172 : 13 C.W.N. 370 : 11 Bom. L.R. 196 : 31 A. 116 : 19 M.L.J. 186. Ed. condemned by their Lordships of the Privy Council who have pointed out that the practice ought not to be countenanced on any account.
3. But apart from that irregularity there is no section of the Civil Procedure Code which justified the learned Judge of the Small Cause Court in treating this suit as ex parte.
4. The rule must be made absolute and the case sent back to the Small Cause Court for disposal according to law.
5. I agree that this rule must be made absolute. I observe that the Judge who made the Order has not passed it on (or supported it by) reference to any section in the Civil Procedure Code. No section in that Code has been pointed out which could possibly justify the Order. And for my own part I. do not know of the existence of any section which would so justify it.
6. The defendant was present by pleader and he was entitled to have his defence heard. This is plain, if it needs to be made plain, from reference to the provisions of Section 117 which do apply to the Small Cause Courts as well as to ordinary Courts. As the pleader was there and there was the obligation on the Judge of ascertaining what the defence was, it seems to me that to treat the suit and decide it as ex parte was a very grave disregard of the provisions of the law.