C.P. Sen, J.
1. This is an appeal by the plaintiff under Clause 10 of the Letters Patent against the order of single Judge in Misc. 1st Appeal No. 151 of 1975 dated 27-8-1976 by which the learned single Judge has set aside the ex parte decree passed against the respondents. The 1st Additional District Judge, Jabalpur, had dismissed the respondents' application for setting aside of the ex parte decree.
2. It is necessary to give a background of the present litigation between the parties in order to fully understand the facts and circumstances of the case. The suit out of which the present proceedings arise was filed by the plaintiff on 4-3-1968 for specific performance of contract of sale D/- 12-7-1958 and for recovery of Rs. 4,750/- on account of the oat-standing interest. The plaintiff's case was that he was in need of money for filing an appeal in the High Court against his father Komalchand and other members of his family against the decree in a partition suit. Raghubir Singh, father of the respondents, was a tenant of Komalchand and he had a decree for eviction against Raghubir Singh. When the plaintiff approached Raghubir Singh he agreed to advance the required amount of Rs. 2,000/- provided the plaintiff executed sale-deed in his favour in respect of house No. 166, Napier Town, Jabalpur, in which he was a tenant. The plaintiff accordingly executed a registered sale-deed for Rs. 10,000/- in favour of Raghubir Singh though only Rs. 2,000/- was paid and the balance amount of Rs. 8,000/- remained with Raghubir Singh on the condition that he would pay interest at the rate of 1% per month and whenever within 10 years the plaintiff would return the sum of Rs. 2,000/- Raghubir Singh would execute a deed of reconveyance. On the same day, a registered agreement of reconveyance was also executed by Raghubir Singh in favour of the plaintiff. Raghubir Singh paid interest up to 12-2-1961 but thereafter he stopped paying interest. The plaintiff used to pass receipts for the payments of interest. The interest accrued after 12-2-1961 came to Rs. 6,750/- and after adjusting the loan of Rs. 2,000/- taken by the plaintiff, the balance amount of Rupees 4,750/- remained outstanding against Raghubir Singh. The plaintiff asked Raghubir Singh to execute a reconveyance deed but on one pretext or another Raghubir Singh was avoiding to execute the deed, hence this suit was filed against the present respondents as Raghubir Singh died on 9-2-1968. The defendant No. 1 alone filed his written statement and resisted the claim in suit and denied that only Rs. 2,000/- was paid towards the sale-deed of 12-7-1958. In fact, their father Raghubir Singh paid the balance amount of Rs. 8,000/- on 4-5-1963 and the plaintiff had passed receipt. Since the plaintiff has not complied with the agreement of reconveyance by tendering the amount of Rs. 10,000/-he was not entitled to any relief in the suit. Raghubir Singh had paid all the interest that was due on the amount of Rs. 8,000/- till 4-5-1963.
3. The plaintiff contended that the receipt was a forged and fabricated document and a stamp containing his signature in one of the receipts passed by him towards the interest paid by Raghubir Singh has been lifted and this receipt of 4-5-1963 has been manufactured. The two attesting witnesses to this receipt are real maternal uncles of respondents and a commission was issued from time to time for examination of these two witnesses. Ultimately, the witnesses could not be examined as one of them residing at Delhi refused to give evidence and the other who was residing in Calcutta was alleged to have later shifted to Delhi and did not attend before the Commissioner and left for Jallander but the defendants stated that they would examine him in Court and did not agree to wait for his return to Delhi. On 20-10-1973 the trial Court proceeded ex parte against the defendants and an ex parte decree was passed on 1-11-1973. However, the ex parte decree was set aside on 8-5-1974. Though the learned trial Judge found that no sufficient cause was shown for setting aside of the ex parte decree, but since the defendant No. 1 wanted to contest the suit an opportunity should be given to contest the suit in the interest of equity and justice by awarding cost of Rs. 350/-. Thereafter, the defendants again remained absent on 1-11-1974 and an ex parte decree was passed on that day after recording evidence of the plaintiff as the counsel for the defendant No. 1 reported no instructions.
4. The defendant No. 1 filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 2-12-1974 for setting aside of the ex parte decree alleging that he was suffering from typhoid from 28-10-1974 to 28-11-1974 and, as such, he could not attend Court on 1-11-1974. There was no member in his family and he could not send any information to his counsel. Along with the application the defendant No. 1 produced a medical certificate of Dr. S.R. Fadnis dated 29-11-1974 (Ex. P. 1) and also filed 6 prescriptions of different dates (Exts. P. 2 to P. 7). The plaintiff opposed the application and submitted that the defendant No. 1 was never ill on 1-11-1974. He purposely remained absent with the view to suffer ex parte decree and then to apply for setting aside the ex parte decree so as to delay and postpone the reconveyance and delivery of possession of the bungalow in suit. The plaintiff further submitted that the certificate issued by Dr. S.R. Phadnis was false and he was in the habit of issuing false certificates; to prove this fact, the plaintiff produced another certificate dated 11-11-1974 (Ex. D. 1) of the same Doctor showing that the plaintiff was under his treatment for typhoid from 30-10-1974 to 11-11-1974 although on 1-11-1974 the plaintiff did attend the Court and his evidence wasrecorded. The respondent No. 1 examined himself as (A.W. 2) and Dr. S.R. Fadnis (A.W. 1,), while the plaintiff examined 3 witnesses Trilokinath Verma (NAW. 1), Santosh Kumar Sthapak (NAW 2) and himself Shrichand (NAW 3).
5. The learned Additional District Judge by his order dated 18-2-1975 held that a false certificate was issued by Dr. Fadnis (AW. 1) showing that the defendant No. 1 got an attack of typhoid fever on 28-10-1974 when, in fact, the defendant No. 1 was hale and hearty and was seen moving about and suffered no illness. The Doctor has not produced his patients' register to show that he had actually treated the defendant No. 1 during the relevant period or that he treated anyone as per the certificate produced toy the plaintiff (Ex. D. 1). The defendant No. 1 has not produced any cash memos showing purchase of medicines as per the prescriptions (Exs. P. 2 to P. 7. It was very doubtful and quite improbable that defendant No. 1 would have taken treatment of a Doctor living 2 1/2 miles away when there were number of doctors having their dispensaries near the house of the defendant No. 1. Dr. Fadnis lied when he staled that certificate (Ex. D-1) was in respect of the son of the plaintiff aged about 12 years. He has been falsified by the recital in the certificate that he is fit to resume his daily routine, firstly because no one takes a certificate for the illness of a child and secondly even if such a certificate is issued no one will write that he is fit to resume his daily routine. As such, another false certificate was issued by the Doctor to the plaintiff thereby further falsifying the earlier certificate (Ex. P. 1) issued to the defendant No. 1. The trial Judge, therefore, came to the conclusion that such medical certificate and prescriptions can be prepared very easily and no reliance can be placed on the evidence of such an irresponsible Doctor. The conduct of the defendant No. 1 in prosecuting the suit is also a relevant factor in deciding the present application. The trial Judge relied on the evidence of the plaintiff and his 2 witnesses Trilokinath Verma (NAW. 1), and Santosh Kumar Sthapak (NAW. 2). The plaintiff and his 2 witnesses stated that they had seen the defendant No. 1 moving in the compound of his house in the morning and evening on 1-11-1974 and the plaintiff had told his 2 witnesses that he would require themto give evidence of this fact. The defendant No. 1 has admitted that these witnesses are his neighbours. The statement of Santosh Kumar (NAW. 2) went unchallenged as he was not cross-examined in spite of opportunity being given for cross-examination. Relying on the plaintiff's evidence, the trial Judge found that there was no sufficient cause for setting aside the ex parte decree.
6. However, the appeal preferred bythe defendant No. 1 under Order 43 Rule 1 (d) of the Code has been allowed by the learned single Judge by the impugned order. The learned Judge reappraised the evidence and came to a different conclusion. He posed the question as to why a qualified registered medical practitioner should be disbelieved and why would he expose himself to the risk of being prosecuted. The Doctor stated that the plaintiff had brought with him a boy aged about 12 years who was suffering from typhoid and wanted a certificate and the plaintiff gave the name of the boy to be Shrichand which is the name of the plaintiff himself. How could the Doctor know that Shrichand was not the name of the boy but the name of his father. There is no reason why the Doctor should not be believed. The Doctor had not issued a false certificate but he was duped to issue one in a false name. The trial Judge drew an adverse inference because the defendant No. 1 did not file cash memos for the medicines purchased but his learned counsel argued that 2 of the cash memos could be traced out and were in possession and the cash memos were shown to him (the learned Judge). Therefore, the trial Judge was not justified in drawing an adverse inference against the defendant No. 1 for not filing cash memos, The defendant No. 1 had reason to feel that the medical certificate and the prescriptions filed by him were ample evidence in support of his case and if required he could file the cash memos. On the other hand, the evidence led by the plaintiff is not worthy of belief. If he was capable of obtaining a false medical certificate from the Doctor, he was equally capable of purchasing witnesses. Trilokinath Verma is a dismissed employee who was charge-sheeted for forgery and he is a Court bird. The other witness Santosh Kumar is a student and the defendant No. 1's counsel had no opportunity to cross-examine him. As such, his testimony must be received with a little discount. The strange part of the story is that these neighbours had a look of the defendant No. 1 from a distance sitting on a chair, when ought we know, the patient was taken out in the verandah for a change and a little fresh air. The learned Judge, therefore, set aside the ex parte decree. Aggrieved by this order, the present appeal has been filed by the plaintiff.
7. The following contentions have been raised by the plaintiff in this appeal-
(i) The learned single Judge erred in setting aside the order of the trial Judge without dealing with the reasons given by the trial Judge for rejecting the evidence of the defendant No. 1;
(ii) The learned single Judge has not considered that the Doctor did not produce his patients' register to show that he had actually treated the respondent No. 1 at the relevant period or the Plaintiff or his son and he also ignored the fact that the statement of Santosh Kumar (NAW. 2) remained unchallenged; and
(iii) The learned single Judge further erred in considering the two cash memos which were shown to him by the learned counsel for the defendant No. 1 in the absence of any application under Order 41 Rule 27 of the Code and without giving any opportunity to the plaintiff to rebut the same.
The respondent No. 1 on the other hand raised a preliminary objection that the appeal is not competent as the impugned order of the learned single Judge is not judgment within the meaning of Clause 10 of the Letters Patent. This apart, the learned single Judge in the first appeal was entitled to reconsider the whole evidence and come to a different conclusion for the reasons stated in the impugned order. The appeal is, therefore, without any merit and has to be dismissed.
8. As the preliminary objection raised by the respondent No. 1 goes to the root of the matter, it is necessary to consider it before proceeding with the contentions raised by the plaintiff. Clause 10 of the Letters Patent provides that an appeal lies from a judgment of single Judge of the High Court to the Division Bench of the same Court. The question is whether the order of the learned single Judge setting aside the ex parte decree is a judgment. Clause 10 of theLetters Patent is akin to Clause 15 of the Letters Patent of Calcutta High Court and there are corresponding clauses in the Letters Patent of the other High Courts also. The first case that may be referred is the well known and often cited pronouncement of Sir Richard Couch, C. J in Justices of the Peace for Calcutta v. Oriental Gas Co. (1872) 8 Beng LR 433 which is as follows :-
'We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.'
Another pronouncement which is equally well known and often cited is the decision or Sir Arnold White, C. J. in Tuljaram Raw v. Alagappa Chetty, (1912) ILR 35 Mad 1 (FB) which is as follows:--
'The test seems to me' thus observed the learned Chief Justice, 'to be not what is the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent'.
However, there are divergent views of the other High Courts. A Full Bench of the Rangoon High Court in Dayabhai v. Murugappa Chettyar, AIR 1935 Rang 267 held that 'judgment' means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. It appears that earlier in some cases the Nagpur High Court agreed with the view expressed in this Rangoon case, but the majority view of Hidayatullah, J. (as he then was) in Manohar v. Baliram, AIR 1952 Nag 357 (FB) differed with the Rangoon view andopined that a judgment in Clause 10 of the Letters Patent means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. However, the minority view of Mudholkar, J. concurred with the view of the Rangoon High Court.
9. The Supreme Court had the occasion to consider the word 'judgment' in this clause of Letters Patents in 3 different cases. The first is the case of Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198 wherein it was held that transfer of a suit from one Court to High Court under Clause 13 of the Letters Patent (Calcutta) is not a judgment within the meaning of Clause 15. In that case, the Supreme Court noticed the divergent views of the different High Courts including the earlier decisions of the Nagpur High Court and then interpreted the decisions of Sir Richard Couch and Sir Arnold White in the Calcutta and Madras cases. In the second case of Radhey Shyam v. Shyam Behari, AIR 1971 SC 2337 it has been held as under (at p. 2341):--
'An order in a proceeding under Order 21, Rule 90, C. P. C. is a 'judgment' inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale. Therefore, appeal under Clause 10 lies from an order of a single Judge of the High Court in an appeal from an order of an executing Court on an application under Order 21, Rule 90.'
In the last case of Shanti Kumar v. H. Ins. Co., New York, AIR 1974 SC 1719 the Supreme Court held that locus classicus is the decision of Sir Richard Couch in the Calcutta case and preferred the view of High Courts of Calcutta and Madras with regard to the meaning of 'judgment' in preference to the meaning of 'judgment' given by Rangoon and Nagpur High Courts. The Supreme Court, therefore, held that a judgment within the meaning of Clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the finalpronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. Second, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on the merits. But the adjudication of an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent. Therefore, the order appealed against under this clause of the Letters Patent has to satisfy the above 2 tests.
10. However, the learned counsel for the defendant No. 1 has submitted that the Supreme Court has not overruled the majority decision of the Full Bench of the Nagpur High Court in Manohar v. Baliram, (AIR 1952 Nag 357) (supra) and on the other hand it has not accepted the minority view. It is true that in para 9 of the Supreme Court judgment in Shanti Kumar v. H. Ins. Co., New York, (AIR 1974 SC 1719) (supra) the Supreme Court proceeded on the assumption that in the Nagpur Full Bench case the proposition was that the judgment means and is a decree in a suit by which the rights of the parties in the suit are determined. Clearly, this is the proposition of minority view of Mudholkar, J. concurring with the view of the Rangoon High Court, but the majority view of Hidayatullah, J. did not accept the Rangoon view and on the other hand wholly accepted the Calcutta view and partly the Madras view. He did not accept the Madras view to the extent that even orders in ancillary proceedings are included within the meaning of the word 'judgment' in this clause. Since the Supreme Court has approved the views of the Calcutta and Madras High Courts, the view of the Nagpur High Court in Manohar v. Baliram (supra) is not in accord with the decision of the latest Supreme Court case to the extent it differed with the view expressed by Sir Arnold White in the Madras case. P. V. Dixit, C. J. in Punjab Soap Works y. H. Liver Ltd., 1962 MPLJ 240 : (AIR 1962 Madh Pra 356) opined that the Supreme Court in Asrumati Debi v. Rupendra Deb, (AIR 1953 SC 198) did not give any exhaustive definition of the word 'judgment' nor it preferred the views of the Calcutta and Madras' High Courts to those of Rangoon and Nagpur High Courts. The Supreme Court 'only interpreted the decision of the Calcuttaand Madras High Courts in that judgment. Therefore, the observation of the Supreme Court cannot be read as approving the view of Sir Arnold White in the Madras case. But the position has now changed because in the latest case of the Supreme Court in Shanti Kumar v. H. Ins. Co., New York, (AIR 1974 SC 1719) (supra) the pronouncement of Sir Arnold White has been approved. As such, the further proposition of Hidayatulah, J. that judgment does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective is no longer binding on this Court.
11. We are inclined to hold that the impugned order of the learned single Judge setting aside ex parte decree is a judgment within the meaning of Clause 10 of the Letters Patent because (i) by the Impugned order the proceedings initiated on the application of the defendant No. 1 under Order 9, Rule 13 of the Code came to an end and as such the first condition laid down by the Supreme Court in Shanti Kumar's case (supra) is satisfied. (ii) by setting aside the ex parte decree the plaintiff is deprived of valuable right accrued to him under the decree which had been passed in his favour and by the impugned order the defendant No. 1 is relieved of his liability under the decree and (iii) the proceedings under Order 9, Rule 13 is not a proceeding in the suit but it is an ancillary proceeding. The three conditions having been satisfied, the impugned order is a judgment and this appeal is competent. It is true that Section 104(2) of C.P.C. provides that no appeal shall lie from an order passed under this section, which means that no further appeal lies to this Court but this provision does not bar appeal under Clause 10 of the Letters Patent from decision of the single Judge to the Division Bench of this Court. A Division Bench of the Nagpur High Court in Ganpati v. Pilaji, AIR 1956 Nag 211 has held as under (at p. 213):--
'Section 104 applies to appeals to High Court from Courts subordinate to it. It does not deal with appeals from a single Judge of the High Court to a Bench under the Letters Patent. There is no provision under the Code for any right of appeal from the decision of a single Judge to a Bench. Such appeals are provided by Clause 10, Letters Patent of the Nagpur High Court which is analogous to Clause 10 of Allahabad and Clause 15 of the Calcutta, Madras and Bombay High Courts. They cannot be said to be barred by Section 104 in the absence of an express provision. On the other hand, such appeals are recognised by Section 4 of the Code.'
Therefore, a further appeal lies to this Court under Clause 10 of the Letters Patent.
12. There is a direct decision to the contrary by a Full Bench of the Bombay High Court in E. S. & W. M. Co. v. S. S. (Pr) Ltd., AIR 1962 Bom 241 Chainani C.J. in his judgment after observing that all the 3 tests having been fulfilled by the impugned order setting aside the ex parte decree, still he opined that it was not a judgment because it did not finally decide any question arising in the suit. According to him, when a decree is set aside, there is no determination of the questions in controversy between the parties. All the matters are left open for a fresh adjudication. The right of the plaintiff to have his claim determined by a Court is not affected in any way. Similarly, the defendant's liability in respect of such a claim is not affected, but remains to be adjudicated upon. The questions in dispute between the parties are, therefore, not determined by an order setting aside an ex parte decree. For this purpose, he has relied on the 2 Division Bench decisions of the Calcutta High Court in Maharaj Kishore Khanna v. Kiran Shashi Dasi, AIR 1922 Cal 407 and Baldeodas v. Shubchurndas, AIR 1926 Cal 327. In the latter case it was observed that the result of the learned Judge's order is that the merits of the questions between the parties in the suit have not been decided. On the contrary the result is that the suit has been restored and the matters in dispute and the question whether the defendants are liable for the amount claimed have yet to be decided. With all due deference to the learned Judge of the Calcutta and Bombay High Courts it may be pointed out that in view of the latest Supreme Court decision in Shanti. Kumar's case (AIR 1974 SC 1719) (supra) it is not necessary that the impugned order should finally decide some question in the suit itself. Even if the impugned order finally decides some question in the ancillary proceeding it would be judgment within the meaning of Clause 10 of the Letters Patent. Accordingly, the objection of the respondent No. 1 is overruled.
13. Since the appeal is competent, we may mention here the scope of Letters Patent Appeal. The Supreme Court in Asha Devi v. Dukhi Sao, AIR 1974 SC 2048 has held as under (at p. 2049) :--
'The power of a Division Bench hearing a Letters Patent Appeal under Clause 10 from the judgment of a single Judge in first appeal is not limited only to a question of law under Section 100, Civil P. C. but it has the same power which the single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Sections 100 and 101, Civil P.C. cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal for the simple reason that single Judge of the High Court is not a Court subordinate to the High Court'.
14. It is settled law that it is the duty of the Appellate Court to deal with the reasons given by the trial Court in rejecting testimony of a witness. The Supreme Court in T. D. Gopalan v. Commr., H.R. & C.E., Madras AIR 1972 SC 1716 has held as under (at page 1719):--
'The uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the Appellate Court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial Court.'
15. With due respect to the learned single Judge we must point out that he has not considered some of the reasonings given by the trial Judge for coming to the conclusion that the medical certificate (Ex. P-1) was a false document. The trial Judge came to the conclusion that Dr. Fadnis (A.W. 1) was in the habit of issuing false certificates and this is apparent from the certificate (Ex. D-1) issued in the name of the plaintiff. Although he was not suffering from any illness and he had attended the Court on 1-11-1974 but the certificate shows that he was suffering from typhoid from 30-10-74 to 11-11-74. Dr. Fadnis has admitted that he issued Ex. D-l after he issued Ex. P-l which means after 27-11-74 which is the date of Ex. P-l. It is, therefore, evident that he issued antedated certificate of 11-11-74 after 2-12-74. Obviously to falsify the Doctor, theplaintiff approached him after the medical certificate (Ex, P-l) was filed by the defendant No. 1 otherwise there was no occasion for him to take any such antedated certificate after 2-12-74. Dr. Fadnis has further admitted that he maintains a register of patients examined by him but that register has not been produced. The learned trial Judge was right in drawing an adverse inference against him for non-production of the register. The Doctor also lied when he stated that he had given certificate to the plaintiff's son who came along with the plaintiff and he was suffering from typhoid. He was unable to say whether he had given any treatment to plaintiff's son. Therefore, without treating the patient he is in the habit of issuing certificates on receiving payment. Moreover, the certificate (Ex. D-l) recites that the patient is fit to resume his daily routine. Normally medical certificate is not required for the illness of a child and further if the medical certificate was in respect of a child the Doctor would not have mentioned that he was fit to resume his daily routine. The plaintiff on oath has stated that neither he nor any of his sons suffered from any such illness at the relevant period and he had obtained the certificate obviously by paying money to Dr. Fadnis in order to falsify his certificate (Ex. B-1) given to the defendant No. 1. The trial Judge has rightly held that the recitals in the certificate falsify the assertion of the Doctor that the certificate was issued by him in respect of a child aged about 12 years. The Doctor has mentioned that the medicines prescribed by him to the defendant No. 1 could only be sold on the prescriptions of a registered medical practitioner, which means that Chemist has to mention in the cash memo or his bill that the medicines are being sold in respect of such and such patient on the prescription of such and such doctor. The defendant No. 1 has not produced cash memos in respect of the medicines purchased as prescribed under the prescriptions Exs. P-2 to P-3. The absence of the cash memos throws further doubt about the genuineness of the medical certificate and the prescriptions and an adverse inference has been rightly drawn by the trial Judge. The learned single Judge has considered the 2 cash memos which were shown to him by the learned counsel for the defendant No. 1 in theabsence of any application or order under Order 41, Rule 27 of the Code. Moreover,those cash memos have not been proved nor any opportunity has been given to the plaintiff to rebut the same. The learned single Judge could not have looked into those cash memos and mentioned about them in the impugned order. The single Judge has overlooked the evidence of Santosh Kumar (MAW 2) who has not been cross-examined by the defendant No. 1 and his evidence has gone unchallenged. His evidence goes to show that on 1-11-74 the defendant No. 1 was quite hale and hearty and he was found sitting in his compound. He had also seen the defendant No. 1 moving about - in the compound every day from 2/3rd days prior to it. His evidence has been brushed aside by the learned single Judge by observing that the defendant No. 1's counsel had no opportunity to cross-examine him. He failed to see that in spite of opportunities being given, the defendant No. 1 failed to cross-examine this witness nor any prayer was made either in the trial Court or in the Appellate Court for recalling of this witness for cross-examination. The trial Judge has accepted the evidence of the plaintiff Shrichand (NAW 3) and his two witnesses Trilokinath (NAW 1) and Santosh Kumar (NAW 2). All these persons had seen the defendant No. 1 moving about in his compound on 1-11-74. Obviously, if he was down with typhoid, he could not be found moving in such condition. Without any basis the learned single Judge inferred that the defendant No. 1 was taken out for a change and a little fresh air, when in fact Trilokinath (NAW 1) had deposed that on that day he had seen the defendant No. 1 milking his she-buffalo. The defendant No. 1 Tejinder Singh (AW 2) has admitted that Trilokinath and Santosh Kumar are his neighbours. The learned single Judge might have been justified in not relying on the testimony of Trilokinath (NAW 1) because he has been dismissed from service for forgery and a case was going on in respect of it, but he was not justified in ignoring the testimony of Santosh Kumar (NAW 2). Santosh Kumar had no animus against the defendant No. 1 and he claimed that defendant No. 1 used to come to his house to meet his brother who is a Lecturer.
16. The trial Judge has also considered the conduct of the defendant No. 1 all through in defending the suit. It is evident that he has been making all attempts to protract and prolong the litigation. On 2-1-70 the defendant No. 1,applied for examination of 2 witnesses on commission at Delhi and Calcutta. On 25-5-70 the defendant No. 1 applied to the Commissioner for extension of the date on the ground that one of his witnesses was ill on the date of the evidence. The said witness appeared before the Commissioner and informed him that he has no personal knowledge about the transactions in litigation. However, his statement could not be recorded as the defendant No. 1 was not present on that day. The defendant No. 1 again applied on 17-6-70 for examination of that witness on commission. The application was rejected on 11-9-70 but in revision this Court permitted the defendant No. 1 to examine that witness on commission. On 1-10-71 the Commissioner again went to Delhi but none of the witnesses was present and one witness was given up and it was told that the other witness was out of station. The defendant No. 1 did not agree to await for the return of the witness and the Commissioner had to return back without recording the evidence. On 25-2-72 the defendant No. 1 applied for examination of another witness on commission at Jabalpur but because of prolonged illness the witness died on 7-8-72 before his statement could be recorded. The defendant No. 1 remained absent on 20-10-73 without any sufficient cause and an ex parte decree was passed on 1-11-73. The defendant No. 1 after setting aside of the ex parte decree again remained absent on the date of evidence on 1-11-74. He neither paid process fee nor kept witnesses present on that day and his counsel reported no instructions. All this shows that the defendant No. 1 was deliberately prolonging the litigation on one pretext or another as he was not in a position to prove his assertion that his father Raghubir Singh had paid Rupees 8,000/- to the plaintiff on 4-5-1963 thereby throwing doubts regarding genuineness of the receipt dated 4-5-1963. It is unfortunate that the defendant No. 1 without having any defence worth the name has been able to protract the trial -or the last 10 years. We disagree with the reasonings of the learned single Judge for reversing the conclusions of the trial Judge.
17. In the result, the appeal is allowed with costs throughout, the order of the learned single Judge dated 27-8-1976 is set aside and we confirm the order of the trial Judge dated 18-2-1975 dismissing the application of the defendantNo. 1 for setting aside the ex parte decree. Counsel's fee Rs. 250/-, if certified.