1. After hearing the learned Advocates for the parties, and considering the materials on record and the circumstances of the case, it does not appear to us necessary to decide the broad or general question raised, namely, whether the provisions of the Code of Civil Procedure as a whole would apply to suits for ejectment in the Court of Small Causes, Calcutta. It is quite clear from the records that the petitioner's defence to the suit for ejectment was struck off under Section 14(4) of the Rent Control Act as the whole defence was struck off, whether rightly or wrongly, at the date of hearing, there would have been no occasion for the petitioner to appear and he would not also have been entitled to appear at the said hearing. In such circumstances, the question of sufficient cause for non-appearance at the hearing was wholly immaterial and in any event, there could have been no sufficient cause, as contemplated by Order 9, Rule 13, C. P. C., and, accordingly, no application under Order 9, Rule 13 of the Code for the setting aside of the 'ex parte' decree would have lain to the learned trial Judge.
It seems, therefore, that the order of the learned trial Judge rejecting the application under Order 9, Rule 13 of the Code as not maintainable was perfectly justified in the circumstances of this case, and in this view of the matter we are not inclined to interfere with the order of the appellate Bench rejecting the appeal before it as not maintainable in law. We are, however, not expressing any opinion on this latter question.
2. This Rule, therefore, fails and it is discharged, but in the circumstances of this case we make no order as to costs.