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Shaikh Kalu Sarang and ors. Vs. Srimati Abedannessa Khatun - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1221,97Ind.Cas.172
AppellantShaikh Kalu Sarang and ors.
RespondentSrimati Abedannessa Khatun
Excerpt:
c.p.c. (act v of 1908), order xx, rule 4 - judgments in ex parte cases, contents of--striking out defence, for non-compliance of order as to payment of costs, when proper. - .....as plaintiff's witnesses' costs'. it is, of course, obvious that this order could not have been passed till the 26th of july because no application was made till the 26th of july for payment of these costs. on the suit coming up on the 22nd of august, the date to which it had been adjourned, the defendant did not pay the money and his case was that he did not know of the order. as the case was not called on till 6 p.m. the defendant was allowed till the following day to produce money necessary. on the following day the defendant filed an application for one month's time to pay the costs. the court refused an adjournment and took up the case ex parte not allowing the defendant to adduce any evidence. he examined the witnesses for the plaintiff and on the 14th of september he delivered,.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff, who is the respondent before us now, sued the defendant for her dower. After various dates had been fixed for hearing the plaintiff was ready on the 25th of July. The defendant applied for time and the case was adjourned to the 22nd of August next for hearing. On the 26th of July an order was passed on a petition by the plaintiff that the defendant should pay Rs. 58-4-0 as costs. This order is incorporated in the order of the 25th July, the order concluding with the words 'the defendant would pay Rs. 58-4-0 as plaintiff's witnesses' costs'. It is, of course, obvious that this order could not have been passed till the 26th of July because no application was made till the 26th of July for payment of these costs. On the suit coming up on the 22nd of August, the date to which it had been adjourned, the defendant did not pay the money and his case was that he did not know of the order. As the case was not called on till 6 P.M. the defendant was allowed till the following day to produce money necessary. On the following day the defendant filed an application for one month's time to pay the costs. The Court refused an adjournment and took up the case ex parte not allowing the defendant to adduce any evidence. He examined the witnesses for the plaintiff and on the 14th of September he delivered, the following judgment 'decreed ex parte with costs and 6 per cent, interest, Mukhtear's fee one-and-a-quarter, per cent'. This apparently as far as can be seen constitutes the only judgment in the case. There is no other judgment on the record. It is perhaps unnecessary to say that this judgment does not in any way conform with the provisions of the C.P.C. regarding what a judgment should contain. I would refer the learned Judge to Order XX, Rule 4, in which the necessary ingredients of a judgment are set forth. The defendant appealed to the District Court and the District Judge rejected this appeal finding that even if the appellant did not know of the order of payment of costs until the 22nd of August, still he had time then to comply with the order of the Court. The defendant has appealed to this Court. On a consideration of all the facts of the case we are of opinion that the case must, go back to the trial Court. The judgment obviously does not make the slightest pretention to conform with the provisions of the C.P.C. Even if a suit is decreed ex parte still it is necessary to conform with these provisions and in such a case also the Court must set out the statement of the case, the points for determination, the decision there on and the reasons for such decision. No. attempt has been made to do so in this case. Then again with regard to the striking out of the defence of the defendant on the ground that he had not complied with the order of the Court as regards the payment of Rs. 58-1 0 ay costs, it is somewhat difficult to discover from the record what exactly happened and whether the defendant must have necessarily known of this order as to costs. The order recording the amount of these costs could not have been passed until at the earliest, the 26th of July, because it was not until the 26th of July that the plaintiff put in her application asking that she should be allowed these costs. The order fixing the date of hearing bears the date of the 25th July and there is no reason to hold that that order so far as regards the date fived for the case was not passed on the 25th July the date on which it purports to have been made. We are not entitled to assume otherwise though as regards the order fixing the amount of co3ts it is quite clear it could not have been passed at least until the 26th or 27th of July. There was, therefore, no reason for the defendant to remain present after the 25th July and, therefore, it cannot be assumed that he must have known of the order for costs which obviously was not passed until the next day. Neither is it recorded in that order that unless the costs were paid he would not be allowed to proceed with his defence. Assuming which I think is probably the real state of affairs that he did not know of this order for costs until the 22nd August the time allowed him to pay in the money was obviously unreasonable. People of this class are not able to find Rs. 58-4-0 at a moment's notice. We think, therefore, that the right order is that the decree of the Appellate Court and also of the trial Court should be set aside and the case should be sent down to the trial Court for hearing. If the defendant puts into Court within fifteen days after notice of arrival of the record in the trial Court, this amount of Rs. 58-4-0, that Court will proceed with the case according to law. If he fails to put in this money the Court will then treat the case as an ex parte suit and deal with it accordingly. There will be no order as to costs in this appeal or in the lower Appellate Court. The defendant is entitled to the refund of the Court-fees paid on the memorandum of appeal in this Court and in the lower Appellate Court.

B.B. Ghose, J.

2. I agree.


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