- (1.) This appeal is directed against an order rejecting the application moved under Order 9, Rule 13, CPC Primarily on the ground that the conduct of the defendant appellant was not above board inasmuch as he has been adopting dilatory tactics for prolonging the trial of the suit and also for the reason that the grounds given in the application did not appear to be correct.
(2.) A suit for recovery of approximately Rs. 1,25,000/- was brought against the appellant in 1986. The order of the Court below mentioned that on many occasion ex-parte orders were passed against the defendant which were recalled on his application. Ultimately 2.11.1988 was the date fixed for framing the issue. On that date neither the defendant nor his counsel appeared till about 12.45. p.m. At this stage the Court passed an order directing the suit to proceed ex-parte and the plaintiff was ordered to prove his case by affidavit. The affidavit was shown at about 2.45 p.m. the same day. The Court fixed 5.11.1988 for judgment which was duly pronounced on that date decreeing the suit ex-parte. The defendant moved an application under Order 9, Rule 13, C.P.C. only on 3.12.1988 on the ground that he along with his counsel were proceeding for Moradabad to Rampur by car which failed on the way due to some defect in the engine which could not be set right despite vigorous efforts. Ultimately they had to return back to Moradabad and they again proceeded from Moradabad to Rampur and could reach the Court only at about 1.30 p.m. According to the appellant he was informed by the Reader of the Court that the matter has been heard ex-parte and 5.11.1988 has been fixed for delivery of judgment. For this reason no application for recall of the order could be moved that day.
(3.) The Trial Court, on a consideration of the entire material before it, came to the conclusion that the conduct of the appellant was not bona fide. He also found that the allegation that the counsel and the defendant-appellant had reached the Court at 1.30 p.m. on 2.11.1988 appear to be incorrect inasmuch as the ex-parte proceedings were concluded only after 2.45 p.m. when the affidavit sworn by the plaintiff was filed in Court.;