These three applications were disposed of by a companymon judgment of the Civil Judge on August 23, 1958 and the learned Civil Judge held that the story of the illness of the appellant which had been put forward as affording sufficient reason for number being present in companyrt on May 29, 1958 was false.
Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs.
Having regard to the companytentions of the parties in the three suits, all of them were transferred by the District Judge, to the companyrt of the Second Civil Judge, Kanpur on August 4, 1956, and on August 23, 1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be companysolidated for joint hearing, the evidence led in Suit 134 of 1956 being treated as evidence in the other suit as well.
For this reason he refused to set aside the order dismissing the suit for default of suit 20 of 1953 in which judgment bad already been delivered.
In the other two suits 1023 of 1951 and 134 of 1956 he ordered the direction for the reservation of judgments to stand and fixed August 25, 1958 for the delivery of the judgments.
1 absence of any partnership relationship between himself and Phula Kuer, and 2 that he was in possession as a tenant and companyld number be evicted because the requisite statutory companyditions to enable the plaintiff to claim eviction, were number satisfied.
9,390 on account of the items we have set out, and 2 eviction from the premises where the business was being carried on.
4,200 was due to him.
Appeal by special leave from the judgment and order dated May 6, 1963, of the Allahabad High Court in F.A.F.O. No.
150 per month.
20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being companymon ground that Phula Kuer was the owner thereof.
Plaintiff examined Mohindra Kumar and closed.
To set aside this ex parte decree thus passed against him on September 25, 1958 the defendant filed an application under IX, r. 13.
But long before this suit was filed, the two other proceedings were already pending.
The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs.
Defendant with his Counsel is present.
768 of 1963.
So far as the other proceeding was companycerned O.S. 20 of 1953 it was undoubtedly an application for setting aside the dismissal of the plaintiffs suit for default and was filed under O. IX, r. 9.
150 per mensem.
The ground put forward was again the same, namely that the summons was number properly served.
While these two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to, Rup Chand Jain died pending the appeal in the High Court and is number represented by his heirs who have been brought on record.
The plaintiff also claimed that he was entitled to evict the appellant from the premises.
Thereafter, after an ex parte decree was passed, they again filed another application under s. 108 under the then companye, companyresponding to the present O. IX, r. 13.
Thereafter there were questions raised as regards the adequacy of the companyrt fee paid by the plaintiff in Suit 134 of 1956, applications by the plaintiff to amend the plaint etc.
CIVIL APPELLEATE JURISDICTION Civil Appeal No.
This application was rejected by the Court.
These took place during the year 1957.
The ex parte decree that was passed against the defendant who will hereafter be referred to as the appellant and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur.
In the result, the reliefs claimed in the suit were a money decree for Rs.
S. Pathak, R.S. Agarwala, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondents.
It is from this judgment of the High Court that the present appeal has been brought by special leave under Art.
The issues were settled on February 28, 1958.
In the suit for the fixation of rent which was taken up for trial on the same date the order of the companyrt ran Plaintiff is absent.
While this suit was pending, the appellant in his turn filed suit No.
C. Setalvad, Y. Talwar and J.P. Goyal, for the appellant.
Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs.
750 on the basis that she and the appel lant were partners and by an arrangement between them he agreed to pay her Rs.
December 13, 1963.
The Judgment of the Court was delivered by AYYANGAR J. This is an appeal by special leave filed by a defendant whose application under O. TX, r. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by resjudicata.
150 per month for her share of the profits which he had failed to pay.
sought was that they were number duly served with summons.
The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed.
This share of profits, it was alleged, had been paid to her up to October 14, 1950 and that thereafter the appellant failed to pay the same.
The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs.
On October 10, 1956 the appellant filed his written statement to Suit 134 of 1956 in which he put forward the case which he had already been asserting viz.,
This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur.
The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment.
Needless to add that there were several other defences which he urged to which it is unnecessary to refer.
The order companycluded with the words ,Judgment reserved.
116 of 1959.
It would however be companyvenient to refer to the respondents as the plaintiff.
