A plaintiff cannot deliberately undervalue their claim in the plaint to deprive the defendant of their valuable right of appeal to the High Court.

Sinha, C J—This is an application in revision against an order, dated 14-11-1951, passed by Civil Judge, Class-II, Durg, setting aside the 'ex parte' preliminary and final decrees in a suit for accounts.

2. The facts leading up to this application may shortly be stated as follows.

On 5-8-1949 the Petitioners instituted a suit for accounts against the non-Applicants. Summonses appear to have been served on 14-9-1949 and the case was fixed on hearing on the 14th October the same year 'Ex parte' proceedings continued until 15-31950. A preliminary decree for accounts was passed and a commissioner appointed to look into the accounts. After the commissioner had daily reported, a final decree was passed on 21-8-1950. It was not till 10-3-1951, when the decree was sought to be executed that the application for setting aside the 'ex parte' decree was made.

The application was made on the ground that the Applicant (non Applicant 1 in this Court) fell ill towards the end of July 1949 and having lost all hopes of his life, was moving about from place to place in search of medical aid. During his movements from place to place, the Plaintiffs, he further alleged, obtained a decree for Rs. 11,675/- plus Rs. 1,165/- odd by way of costs, although they had valued the suit only at Rs. 100/-. He also alleged that on receipt of the summons in the suit he had sent a telegram to the Court about his serious illness. But on account of his wanderings due to ill health he could not appear in Court to look after the defence of the suit.

He alleged that he came to know of the decree on 5-3-1951 and then hurried up to make this application. He also made a grievance that neither the commissioner nor the Court, during the proceedings for making the decree final, served any notice upon him either to produce his account books or to show cause why a decree for such a large sum of money should not be passed against him.

3. After evidence had been gone into, the Court below ordered that both the preliminary and the final decrees be set aside and the suit be re-heard. An order for casts of Rs. 100/- had been passed against the Applicant in the Court below by way of compensatory costs to the Plaintiffs.

4. It has been found by the Court Below that the non-Applicant (Applicant in the Court Below) had been duly served with the summons in the suit and that he had sent a telegram to the Court praying for adjournment on the ground of his illness. The Applicant did not care to defend the suit because, according to the summons, the claim was only for Rs. 100/- and a copy of the plaint had not been served on him. He did not care to defend the claim for Rs. 100/- but later he came to know that a decree for Rs. 11,675/- odd had been passed and then he realised the seriousness of the situation.

The Court below further found that three qualified doctors had been examined in support of his case that he had been suffering from functional defect of heart, enlargement of liver, malarial pain in the liver area, jaundice, anaemia etc., on account of which he had been advised to stay on sea side. According to that advice, he lived in Puri for about seven months; but the Court found that if the Defendant was cognizant of the fact that there was anything like a claim of Rs. 11,675/- odd, he would have taken steps to defend the claim, but he was negligent in doing so on the assumption that the claim was only for Rs. 100/-.

The Court below has further found that the Plaintiffs deliberately undervalued their claim in the plaint by estimating their claim at Rs. 100/-, when they knew fully well that their dues would amount to more than Rs. 11,000/-. From that fact the Court below has inferred that the Plaintiffs were playing a fraud on the Court and on the Defendants. As fraud is a matter wholly unconnected with an application under Rule 13 of Order 9, Code of Civil Procedure, it is no more necessary to say anything about that; but one cannot help saying that for some reason or other the Pl