Law: Civil Procedure Code (V of 1908)

Section:

Civil Procedure Code (V of 1908),   O. IX, r. 13 read with O. XVII, rr. 1, 2---Adjournment to enable parties to negotiate compromise-Adjournment for "hearing"-Adjournment under O. XVII is adjournment always for "hearing"-Defendant absenting himself on date of adjourned "hearing"Decree ex parte-Setting aside decree-O. IX, r. 13 applicable-Argument that adjournment was not for a "hearing" and that therefore provisions of O. IX, r. 13 were not applicable, not tenable-Adjournment-Parties' and counsel's duty to keep in touch with proceedings of case after intimation of same.   The case was fixed for evidence to be recorded on the 20th December 1957, when the following order was passed:-   "On the joint request of parties adjourned to 31-1-58 as parties are negotiating a compromise. The case will be taken for hearing on 31-1-58, if compromise be not filed by then."   On the 31st January 1958, the parties asked for adjournment for the same purpose and the case was adjourned first to the 28th February, then to 31st March 1958, then to 12th April 1958, then to 26th April 1958 and finally to 14th July 1958. On that date, although the plaintiff's counsel was present, the defendant and his counsel were absent. The counsel's munshi put in an application that the counsel was away from Karachi and that the case may be adjourned. This application was not accepted and an order was passed calling upon the plaintiff to produce ex parte evidence on 16th July 1958. The defendant and his counsel remained absent on that date also and the plaintiff's evidence was recorded and an ex parte decree passed in. his favour.   On 16th August 195 8, i.e. after 31 days, an application was made under Order IX, rule 13 and section 151, C. P. C. for the setting aside of the ex parte decree and it was contended that since the; adjournment had not been made for the "hearing" of the case, the matter did not fall within Order IX, rule 13, C. P. C., and that being the case, the ex parte decree was illegal. This conten tion was not accepted, and as the application was time barred, it was dismissed.…