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Civil Appeal No. 50 of 1957, heard on 1st May 1959.

(On appeal from the orders of the High Court of East Pakistan, Dacca).

Civil Procedure Code (V of 1908)‑

--‑‑O. IX, r. 13‑Setting aside ex parte order‑Ex parte proceedings sought to be quashed alleged to be fraudulent and ex parte order obtained by device of giving false addresses.‑Petition for setting aside exparte order dismissed for non‑appearance of counsel in time allowed (immediately after item next following)‑Intervening case having itself collapsed and consequently taking no time, lower Court, held, acted with undue severity in not allowing reasonable interval but insisting on literal observance of his order‑Petitioner standing to suffer heavy and permanent loss, case restored to its original number.

The petitioner's case was that the proceedings were fraudulent and the order had been obtained, behind his back, by the device of giving a false address for himself and his wife, who was a co‑owner with him. Thus by the discharge of the Rule, the petitioner stood to suffer a heavy and per manent loss.

Held : Bearing this in mind, the penalty of refusal to restore his petition for a comparatively brief delay in appearance by his counsel seems altogether uncalled for. Having allowed the petitioner's counsel time to present the case, the Judge acted with undue severity in not allowing a reasonable interval, but instead insisting on literal observance of his order that the case would be taken up immediately after the item next following without regard to the fact that the intervening case itself collapsed and consequently took no time.

Nemo for Appellant.

M. A. Khandkar, Advocate Supreme Court instructed by A. N. M. Nisaruddin. Attorney for Respondent.

Date of hearing ; 1st May 1959.

A. R. CORNELIUS, J.‑

This appeal must be allowed. It seeks reversal of an order of a learned Single Judge of the Dacca High Court, dated the 11th January 1957, refusing to restore a Rule discharged by the same learned Judge on the 4th January 1957, for non‑appearance of both parties.

2. The circumstances of the default are stated in the petition for special leave in the Memorandum of Appeal and again the concise statement filed by the appellant. They are in conformity with the representation made before the learned Single Judge in the appellant‑petitioner's application for restoration, dated the 7th January 1957, which was supported by a sworn affidavit. The opposite‑party has not appeared before us to controvert those facts.

3. The matters mentioned in explanation of the default took place mostly in face of the Court. The case was shown as No. 7 in the list and, when it was called, Mr. M. A. Khandkar appeared for the petitioner, but counsel for the opposite‑party being absent, another lawyer requested for an adjournment on the ground of the illness of counsel. Mr. Khandkar assented to this request which was refused by the learned Single Judge, whose direction was that the case would be taken up, after item No. 8. Mr. Khandkar left the Court in order to fetch his brief (apparently he had confidently expected an adjournment), and, on his return found that the case had been dismissed for default of appearance. It seemed item 8 bad also been disposed of in default of appearance.

4. A verbal prayer for restoration was rejected and an application filed on the 7th January three days later, for restoration, was rejected on the 11th January 1957, without giving reasons. The facts were indeed within the knowledge of the learned Judge, and the question is whether the penalty of discharge of the Rule issued in the case was not only too severe but also in the circumstances undeserved. The petitioner was attempting, by the Rule he had obtained, to save his rights in certain property which he had bought in 1953, in a succession of alienations following an auction sale in 1946. The judgment debtor in the auction sale in 1954, had petitioned to have the sale set aside, and the local Court had made an order to that effect on the 5th March 1955. The petitioner's case was that these proceedings of 1954 were fraudulent and the order had been obtained, behind his back, by the device of giving a false address for himself and his wife, who was a co-owner with him. Thus by the discharge of the Rule on the 4th January 1957, the petitioner stood to suffer a heavy and permanent loss.

5. Bearing this in mind, the penalty of refusal to restore his petition for a comparatively brief delay in appearance by his counsel seems altogether uncalled for. Having allowed Mr. Khandkar time to present the case, the learned Single Judge acted with undue severity in not allowing a reasonable interval, but instead insisting on literal, observance of his order that the case would be taken up immediately after the item next following without regard to the fact that the intervening case itself collapsed and consequent took no time.

6. We accordingly allow this appeal and direct that the Rule be restored to its original number and be proceeded with according to law from the state reached before its dismissal on the 4th January 1957. We make no order as to costs.

Appeal allowed.

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