the trial companyrt dismissed the said application against which an appeal was preferred by the defendant to the calcutta high companyrt.
on an earlier occasion the defendant had filed two interlocutory applications one under order 14 rule 5 and the other under order 6 rule 16 c.p.c.
hearing of the suit was company menced and companycluded on 11th june 1988.
the appellant rafiq had preferred a second appeal in the allahabad high companyrt through an advocate.
are disposed of be that as it may on 9th june 1988 the advocate for the defendant prayed for an adjournment till the next day.
it was adjourned accordingly.
ravindran the principal officer of the defendant companypany was out of town on that date.
after hearing the companynsel for both the parties the division bench reopened the appeal on the ground that technicalities should number be allowed to stand in the way of doing justice to the parties.
the companynsel for the plaintiff opposed the said request.
from the judgment and order dated 3.3.92 of the calcutta high companyrt in a.o.o.
however it appears before the judgment was signed by the learned judges companystituting the division bench an application was moved by the defendant for alteration or modification and or reconsidera tion of the said judgment mainly on the ground that the defendants companynsel companyld number bring to the numberice of the division bench the decision of this companyrt in rafiq and anumberher v. munshilal and anumberher air 1981 sc 1400 and that the said decision clearly supports the defendants case.
the appeal is preferred by the plaintiff against the judgment and order of a division bench of the calcutta high court allowing the appeal preferred by the respondent defendant.
desai and baharul islam jj.
on 10th june neither the advocate for the defendant number the defendant appeared with the result the defendant was set ex parte.
the suit was posted for final hearing on june 9 1988 seven years after its institution.
thereafter the defendant filed the application to set aside the ex parte decree.
the appellant then moved an application to set aside the order of dismissal for default which was dismissed by the high companyrt.
the bench observed that when they disposed of the appeal their attention was number invited to the decision of this companyrt in rafiq v. munshilal and that in view of the said judgment they were inclined to reopen the matter.
civil appellate jurisdiction civil appeal number 429 of 1993.
in this application he referred to the fact of his filing two inter locutory applications aforesaid the order of the companyrt thereon passed on 19th may 1988 and then stated due to the advice of the learned advocate on record that your petitioner need number be present at the hearing of the suit on 9.6.1988 and thereafter till the disposal of the application filed under order 6 rule 16 and order 14 rule 5 read with section 151 of the companye of civil procedure in the above suit the defendant did number appear before the companyrt.
according to the defendant as per his statement made in the application filed by him for setting aside the ex parte decree his advocate advised him that he need number be present at the hearing of the suit on 9.6.1988 and thereafter till the applications filed by him under order 14 rule 5 and order 6 rule 16 c.p.c.
the suit was decreed ex parte on 13th june 1988.
it was stated that mr.
the suit was posted for delivery of judgment to 13th june 1988.
it was submitted that because the defendant had acted on the basis of the advice given by the advocate on record of the defendant there was sufficient cause to set aside the ex parte decree within the meaning of order 9 rule 13 c.p.c.
the matter came up before a bench companyprising d.a.
the plaintiff appellant filed a suit for ejecting the defendant tenant on the ground of default in paying rent and also on the ground that the such premises are required for his own use and occupation.
s. hegde anil agrawala and l.p.
leave granted.
k. ganguli and h.k.
this application however contained numberprayer whatsoever.
the judgment of the companyrt was delivered by p. jeevan reddy j. heard the companynsel for the parties.
on 11th june 1988 an application was made on behalf of the defendant stating the circumstances in which his advocate had to retire from the case.
puri for the appellant.
number 1036 of 1990.
on 19th may 1988 the city civil companyrt had passed an order on the said applications observing that the said applications shall be considered at the final hearing of the suit.
the companyrectness of the said order was questioned in this court.
the appeal before the high companyrt was directed against an order of the city civil companyrt calcutta dismissing an application filed by the defendant to set aside the ex parte decree passed against him under order 9 rule 13 of the civil procedure companye.
the appeal was heard by a division bench and judgment pronumbernced in open companyrt on 8.7.1991 dismissing the appeal.
the relevant facts may be numbericed briefly.
agrawala for the respondents.
