1. This is a motion by the defendant in the suit to set aside an ex parte decree passed against him on January 19 this year, under Order IX, Rule 18, or, alternatively, under Order XXXVII, Rule 4. The only question, as far as Order IX, Rule 13, is concerned, is whether he (the defendant) was prevented by any sufficient cause from appearing when the suit was called on for bearing.
2. Very shortly, the position was that he could not appear when the suit was called on for hearing, because it was a summary suit, and he had not even filed his appearance. The reason, he says, that he did not file his appearance was that the plaintiff, a Marwari money-lender, who held the defendant's promissory note for Rs. 2,000, had assured the defendant, who is described in the title of the plaint as a Parsee inhabitant, that he (the plaintiff) would not recover more than Rs. 400, with interest thereon. The defendant says that on this generous assurance he neither entered an appearance in the suit nor took any other step in the suit, until he learnt that a decree had been obtained against him-as the fact was-for the whole Rs. 2,000. Without discussing the question whether, if that story is true, the defendant was in law 'prevented by sufficient cause', I am to consider whether I am satisfied affirmatively that it is true, a duty which Order IX, Rule 13, imposes on me; for it only comes into operation if he( (the defendant) satisfies the Court that he was prevented by any sufficient cause. Looking at the two affidavits, one on each side-the other denies that any such representation or agreement was made-I consider it highly improbable that the agreement was made and almost equally improbable that the defendant should have placed such implicit reliance on a member of another, and reputedly, at all events, a very harsh community. I am not satisfied that this arrangement ever took place at all.
3. As far as Order XXXVII, Rule 4, is concerned, it is true that I might, under some circumstances, set aside the decree, but I do not think that there are any such circumstances in the present case: at all events, I am not satisfied that there are. In case I am wrong in disbelieving his affidavit, he is not without remedy, for;1 if his story be true, it seems to me that he could have either brought a regular suit to set aside the decree on the ground that it was obtained by fraud, or if it is held that there was no misrepresentation of present fact, but a mere misstatement of a future event, he could obtain damages for breach of contract. In these circumstances, the motion fails and must be dismissed with costs.