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TMI Blog1958 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... e representation and assurances the plaintiff advanced ₹ 12,500/- by cheque on the 8th January 1946 and left the choice of shares to the said Kuldip Singh, that a few days after the plaintiff sent a telegram to the defendant reiterating the bases of the offer of purchase of shares by him, that the said Kuldip Singh by a telegram dated 15-1-1940, informed the plaintiff that he had been accepted as Director and congratulated the plaintiff, that the defendant sent a communication to the plaintiff dated 16-3-1946, purporting to be an allotment letter demanding the balance i.e., ₹ 12,500/- only from the plaintiff, thus intending to complete the transaction of sale of 1.00 preference shares of ₹ 100/- each, 1,000/- ordinary shares of ₹ 10/- each and 1,000/-, deferred shares of ₹ 5/- each in favour of the plaintiff, that the said Kuldip Singh purporting to act on behalf of the defendant sent another communication to the plaintiff dated 25-3-1946 enclosing a form to be filled up and to be returned by the plaintiff to the defendant purporting to be a declaration of consent to act as Director in the defendant company; that in reply the plaintiff wrote to the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence. 7. On the date fixed namely 2-10-1947, the defendant was absent and the order-sheet shows that the court recorded an order that the suit would proceed ex parte as against the defendant. The court further ordered that the plaintiff's statement may be recorded. Thereafter, Pratap Singh, the plaintiff went into the witness box and gave his deposition and by his evidence he also proved certain documents filed by him. Thereafter, the Court passed a short judgment in the following words; This is a suit for the recovery of ₹ 13,641 on the allegations that the defendants' agent induced the plaintiff to purchase shares of the defendant company by misrepresenting that the plaintiff would be appointed a promoter director. The representations made by the defendant's agent were found to be false and the plaintiff, therefore, claims refund of the money paid to the defendant together with interest. The defendant is absent. The claim is proved. The plaintiff is, however not entitled to recover interest from the defendant. ORDER Suit for the recovery of ₹ 12,500/- is decreed ex parte with costs and six per cent, pendente lite and future intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year as close holidays in the civil courts. (ii) the list shall be published in the Official Gazette; (iii) a judicial act done by a Civil Court on a day specified in the list shall not be invalid by reason only of its having been done on that date. 13. It appears that the High Court had drawn up a list of days to be observed as close holidays in the lower courts for the year 1947 and that pursuant to Section 15 of the Bengal, Agra and Assam Civil Courts Act, that list of close holidays was duly published in the Gazette, but that list did not indicate that 2-10-1947 would be a close holiday in connection with the birthday of Mahatma Gandhi. 14. By a notification No. 4659/III-III 1946, dated Lucknow 26-9-1947 the Government of the United Provinces in exercise of the powers conferred by Section 25, Negotiable Instruments Act, 1882 (Act No. XXII of 1 882) which by virtue of Government of India, Home Department, Notification No. 228/38 public dated 1-4-1938, are excrcisable by provincial governments, declared Thursday, 2-10-1947, a public holiday for the whole of the United Provinces on account of the birthday of Mahatma Gandhi. This notification was sent to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court shall not refuse to do any act or make any order urgently required. 19. The question therefore, which arises is whether the court below in passing an order that this case should proceed ex parte on the 2nd of October, was acting in accordance with the Bengal, Agra and Assam Civil Courts Act and the rules framed by this Court. As has already been indicated the 2nd of October, although it had been declared to be a holiday, was not notified as such in the Official Gazette as required by Section 15, Sub-clause (2) of the said Act, so as to attract in terms the provisions of Sub-clause (3) of the Act; but even so, we think that the spirit of the section demands that 2-10-1947 must undoubtedly be treated as being a close holiday so far as the courts subordinate to this Court were concerned. Moreover in our view, Rule 19, Chapter 20 is attracted in this case and the court should not have proceeded to pass an order that the case would be disposed of ex parte on 2-10-1947 because there was no urgent necessity to do so and because the consent of the defendant was not available. The clear intention of Rule 19 of Chapter 20 of the Rules of the Court is that only a matter of extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgent business. We are not, therefore, inclined to allow a transgression of this well known principle in this case. Merely because the plaintiff chose to appear on a close holiday, he cannot be permitted! to take the advantage of the process of the court and to get a judgment ex parte in his favour. 23. We will test the matter further. If the plaintiff had not put in appearance on the 2nd of October, which day was a close holiday, would the court have been justified in dismissing the suit for want of prosecution? The answer must surely be in the negative. The same rule must apply to the defendant. In the circumstances we think that it almost amounts to permitting an abuse of the process of the court to allow the decree in this case to stand. The decree will, therefore, have to be set aside and the case will have to be sent back to the court below to be proceeded with after due notice to parties from the point at which the defendant was to put in appearance in response to the summons. The Court will fix a fresh day on which day the defendant will be expected to comply with the requirements of the summons already issued to him. 24. We may now deal with the other point that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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