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Mool Chand Vs. Ganga Sahai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All522; 145Ind.Cas.804
AppellantMool Chand
RespondentGanga Sahai
Cases ReferredBrij Lal v. Bua Ram
Excerpt:
- .....neither the plaintiff nor the defendant appeared, and the suit was dismissed for default. on 27th june an application by the plaintiff was heard asking for restoration. notice of that application was served on the defendant. on 27th june however the defendant did not appear. the application for restoration was allowed and 29th june was fixed for the hearing. of this date the 29th june the defendant had no notice. the case was decided in favour of the plaintiff on 29th june, and the defendant applied on 12th august for restoration of the case. he filed an affidavit saying that he had no knowledge whatever of the case, until 5th august. the learned judge however decided that as the defendant had knowledge of the original hearing- and of the application for restoration, it was unnecessary.....
Judgment:

Young, J.

1. This is an application in revision from the decision of the learned Subordinate Judge of Aligarh. The plaintiff brought a suit for salary, and notice was served on the defendant. On 20th April the case was fixed for hearing further evidence. Neither the plaintiff nor the defendant appeared, and the suit was dismissed for default. On 27th June an application by the plaintiff was heard asking for restoration. Notice of that application was served on the defendant. On 27th June however the defendant did not appear. The application for restoration was allowed and 29th June was fixed for the hearing. Of this date the 29th June the defendant had no notice. The case was decided in favour of the plaintiff on 29th June, and the defendant applied on 12th August for restoration of the case. He filed an affidavit saying that he had no knowledge whatever of the case, until 5th August. The learned Judge however decided that as the defendant had knowledge of the original hearing- and of the application for restoration, it was unnecessary that he should have notice of the date the 29th June when the actual hearing took place. The defendant has applied in revision against this order dismissing his application for restoration.

2. The sole point in this case is whether the learned Judge was right in deciding that it was not necessary to serve notice on the defendant of the date of hearing of the case after restoration. Counsel for the respondent here has relied upon the case of Brij Lal v. Bua Ram (1912) 17 IC 292. In that case a learned Judge of this Court decided that where neither the plaintiff nor the defendant had appeared on the date fixed originally for the hearing of the case the defendant was not entitled to notice of the date fixed for hearing the application for restoration by the plaintiff. This case is no authority for the proposition that no notice is necessary for the hearing of the case itself after restoration.

3. It appears to me that apart from authority, I cannot possibly decide that a defendant is not entitled to notice of the hearing of the case against him. In this case both the plaintiff and the defendant were absent on the original hearing. When the plaintiff is allowed a second chance by having the application for restoration granted, it appears to me inequitable that the defendant should not have notice of the date fixed for the hearing. Apart from authority therefore I decide that in. any such case the defendant is of right entitled to notice of the hearing of the suit. In this case the learned Judge came to the conclusion that the defendant did have notice in fact of the hearing, although no notice had been served on him, on the bare statement of the plaintiff in an application that the defendant's man had been watching the proceedings on all the dates. The defendant has stated on oath that he had no kowledge. It is impossible to take a mere statement in an application against an oath. I therefore hold that the defendant did not have knowledge of the proceedings on 29th June, and accepting the application in revision, set aside the order of the learned Judge of the Small Cause Court and direct that the suit be restored and decided according to law. Costs, will abide the event.


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