1. On the 8th day of March 1878 a decree was made by the Small Cause Court of Patna for 279 rupees in a suit by Doyal Mistree against Kupoor Chund and another. The decretal order is in these words: 'The case is accordingly decreed ex parte with costs.' An application for rehearing was made on the ground that the defendant's pleader had been unable to attend Court at the time when the suit was heard. On that the Judge makes an order, in which he states that 'this case was not decided ex parte under Section 100 of the Civil Procedure Code; the defendant applying for a new trial had put in a vakalatnamah; he only did not appear when the case was called on for hearing.' He then goes on to say that as the defendant did not pay in the amount of the decree with his application for a new trial, he was unable to entertain it. He, therefore, holds 'that the application does not fall under the first part of Section 21 of the Small Cause Court Act, and that it falls under the second part of that section and as the applicant has not complied with the condition required by the Act, he is unable to deal with the case.' The question now before us is, whether in fact the case does not come under the first part of the section, and whether the Small Cause Court, under a misapprehension, has not refused to exercise jurisdiction and determine whether the defendant was prevented by sufficient cause from appearing when the suit was heard. It is unnecessary to notice the discrepancy between the terms of the decree and the decision of the Judge on the subsequent application as to the case being ex parte or not. We think that the Judge was in error in holding that this was not a case coming within the description of cases decided ex parte, and that, therefore, he had no jurisdiction to deal with it under the first part of Section 21. That section says: 'If it shall be proved to the satisfaction of the Court that the summons was not duly served, or that the defendant was prevented by any sufficient cause from appearing when the suit was heard, the Court shall pass an order setting aside the decree, etc.'
2. It does not appear from these words that the Legislature intended to limit these provisions to the first occasion on which the defendant might have put in appearance, but it seems to us that if a case is adjourned from the date fixed in the summons to any later date, and on such later date, the defendant is prevented by sufficient cause from appearing, he may make an application under that section. Section 100 of the new Civil Procedure Code must be read with Section 98, and when so read it appears to be exactly consonant with the provisions of Section 21 of the Mofussil Small Cause Courts Act.
3. But the matter is not now. A similar case came before Mr. Justice Paul on the Original Side of the Court. In that case Counsel appeared, but the defendant was not in Court on the day on which the case was called on, and his Counsel had not been instructed, and withdrew from the case; the learned Judge there held that the fact that the defendant had answered to the summons and had engaged Counsel, did not deprive him of the right to make an application to the Court under Section 119 to set aside the judgment passed as an ex parte judgment.
4. We must, therefore, set aside the order of the Judge of the Small Cause Court, and direct him to exercise the jurisdiction vested in him by the first part of Section 21 of the Mofussil Small Cause Courts Act, and determine whether the defendant has shown sufficient cause for his non-appearance at the time when the suit was heard. The petitioner is entitled to his costs.