FALLONS AGENCY Vs. UNITED CHEMICALS DISTRIBUTION LTD.

JUDGEMENT

(1.) Delay condoned.

(2.) Special leave granted.

(3.) The appellant was the original-defendant against whom an exparte decree was passed on Jan. 17, 1979. The appellant for the first time came to know of the ex-parte decree some time in or about March 28, 1980. Immediately thereafter, on April 18, 1980 an application under Order 9 Rule XIII of the Code of Civil Procedure was moved on behalf of the appellant requesting the Court to set aside the ex-parte decree and restore the suit to its file and permit the appellant-defendant to participate in the suit from the stage from which it proceeded decree ex-parte. The contention put forward on behalf of the appellant for his absence on the day the suit was decreed ex-parte was that the clerk of his advocate Mr. Pranil Chandra Das had taken away the diary surreptitiously and there was no communication to him as to the date of hearing of the suit as well as to his learned advocate with the result that both remained absent when the suit was called out for hearing and the learned Judge proceeded to hear the suit ex-parte which resulted in ex-parte decree. In support of the application under Order 9 Rule XIII the appellant filed his own affidavit as well as he filed the affidavit of his learned Advocate Mr. Pranil Chandra Das, which supported the case put forward by the appellant explaining the absence of the appellant and his advocate. It may be mentioned that the respondent who was contesting the application did not examine any witness in support of his case.