JUDGMENT - (1) These two matters arise out of an order passed by the Judge of the City Civil Court upon a Notice of Motion being taken out before him to set aside an ex parte decree. The learned Judge set aside the ex parte decree, refused immediate restitution which was sought but directed that the restitution be effected after the suit was disposed of if such restitution was necessary at that time.

(2) The plaintiff filed a suit against the defendant for a declaration that the defendant was her licensee, of the suit premises in 1959 and that the period of licence, viz., 11 months having expired the plaintiff was entitled to possession of the suit premises. The suit was contested by the defendant mainly on two grounds (1) that the defendant was a sub-tenant of the plaintiff and (2) that the premises being of a Co-operative Society the Civil Court had no jurisdiction to decide any disputes between the parties as the exclusive jurisdiction to decide such disputes was in the registrar of Co-operative Societies under Section 91 of the Co-operative Societies Act.

(3) This suit reached hearing on March 25, 1966 after being placed for hearing on several earlier dates. When the suit was called out neither the defendant not his counsel were present. Plaintiff led her evidence and an ex parte decree was made on the same day. Execution was taken out by the plaintiff and on May 14, 1966 possession was taken by the plaintiff and the decree was fully executed.

(4) The defendant thereafter took out a Notice of Motion on May 19, 1966 to set aside the ex parte decree on several grounds. It was alleged that his Counsel Mr. Kashekar was not shown on the record and that therefore his counsel was unable to inform the defendant of the suit being on board for hearing on March 25, 1966. Not being aware that the suit was fixed for hearing on March 25, 1966 defendant did not attend Court. It was further alleged that the defendant left for Delhi on April 22, 1966 and his family also left Bombay and went to Delhi on May 2, 1966. This decree was executed on May 14, 1966 during the absence of all the members of the defendants family from the premises in dispute. The defendant returned to Bombay on May 15,1966 and having come to know that the premises were taken over by the plaintiff this Notice of Motion was filed on May 19, 1966. The Notice of Motion was supported by an affidavit and it was contested by the plaintiff .

(5) Plaintiffs contention on this point was that there was not necessity for Counsel Mr. Kasbekar being shown on the record as representing the defendant for the reason that this counsel did not put in his appearance on behalf of the defendant in this suit. The name of the one Dinkar Rao was shown as counsel for the defendant and his Vakalatnama being on record as counsel there was no irregularity in the routine followed by the Court which had caused any misapprehension in the mind of the defendant. It was also urged by the plaintiff that the fact that Mr. Kasbekar had not put as appearance on behalf of the defendant was made very clear to the defendant when the defendant had applied for an adjournment n the ground that his counsel was ill. Since there was no irregularity committed by the office there was not occasion for the defendant to be misinformed about the hearing of the suit. The plaintiff therefore urged that no sufficient cause was disclosed by the defendant why the ex parte decree should be set aside.

(6) The learned Judge having considered the affidavits of the parties and the other circumstances obtainable in the case held the although there was not sufficient cause disclosed under order 9 Rule 13 of the Civil Procedure Code, there was good cause shown for taking action under the inherent powers of the Court under Section 151 of the Civil Procedure Code. The lower Court, therefore, set aside the ex parte decree. The lower Court, however, refuse to grant restitution which was also sought in circumstances which were against the

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