SYED ZAFER MASOOD Vs. SRI CHANDRA KISHORE

JUDGEMENT

(1.) Aggrieved by an order of the Trial Court rejecting his application for selling aside the ex-parte decree the defendant has come up in appeal. The main ground of attack being that the order passed on 8-4-1988 was not a conditional order and as such the mere non-payment of costs ought not to have been visited by an order to proceed ex-parte against him even in such an eventuality the defendant could not be denied his right to participate in subsequent proceedings which he was denied as he was never intimated thereafter about the dates fixed in the suit from time to time. He also questioned the correctness of the observation as to his absence on several dates as noticed in the order which was not borne out from the record.

(2.) The history of the case from die date of its institution on 20th April, 1982 until 8-4-1988 when the ex-parte order was passed makes a very unhappy reading. The facts have been catalogued in die order of the Trial Court and need not be repeated here. Suffice it to mention that it docs give an impression of a consorted effort by the defendant to stall the proceedings for as long as may be possible. This is not to say that the plaintiff was never at fault. In fact some times even the plaintiffs also was guilty of negligence in the conduct of the case. We are, however, not so much concerned about the past history of the case. It is better to look into those facts which are immediately relevant for our purpose.

(3.) The suit was fixed for final hearing on 20-11-1985. On that date the defendant applied for an adjournment and thereafter for one reason or the other the suit remained pending until 7-11-1987 which was fixed for final hearing. On that dale the defendant was absent and the court directed the suit to proceed ex-parte fixing 17-12-1987. On that date and the subsequent date i.e. 11.1.1988 the Presiding Officer remained on leave. The suit came up on 29-1-1988 but it was adjourned at the instance of the defendant. On the next dale 12-2-1988 the court did not function on account of strike and lire matter was posted for 8th April, 1988 for ex-parte hearing. On that date defendants application for recall of order dated 7-12-1987 came up for consideration and on hearing the parties the following order was passed: