Tarun Chatterjee, J. - (1.) By an order dated 7th February, 2000 the appeal and the application for stay were directed to be heard on 9th of February, 2000. Accordingly, the appeal and the application were taken up for hearing and are being disposed of by this judgment.
(2.) Normally the Courts are reluctant to allow the plaintiff to go away with a decree passed ex parte but in the facts and circumstances of this case, we are of the view that the Trial Court was fully justified in rejecting the application under Order 9 Rule 13 of the Civil Procedure Code which was filed at the instance of the defendants-appellants in a suit for specific performance of a contract for sale of the suit premises and other incidental reliefs. The aforesaid suit for specific performance of the contract for sale of the suit premises was filed by the plaintiff/respondent against the defendants/appellants on 6th of February, 1993. After about a year from the date of filing of the suit, the defendants who were appellants before us appeared by filing Vakalatnama and a petition was filed praying for time to file written statement which was allowed by the Trial Court. On 29th of March, 1994 another petition for time to file written statement was filed by the defendants/appellants which was again allowed by the Trial Court. Two months thereafter on 16th May, 1994 again a petition for adjournment was filed by the defendants/appellants for filing written statement. Again time was allowed to file written statement. On 8th June, 1994, the plaintiff filed Hazira but the defendants/appellants did not take any step nor the written statement was filed. Since no written statement was filed, the suit was fixed for ex parte hearing on 12th July, 1994. On 12th July, 1994 the plaintiff again had taken steps but defendants filed a petition praying for adjournment of the ex parte hearing for a month. The said adjournment petition was also not moved by the defendants/appellants. Accordingly, the same was rejected by the trial Court and the suit was taken up for ex parte hearing. Just before the expiry of the period of limitation to make an application under Order 9 Rule 13 that is to say on 11th August, 1994 an application under Order 9 Rule 13 of the Civil Procedure Code was filed by the defendants/appellants in the trial Court, which came to be registered as Misc. Case No. 17 of 1994. On 24th August, 1994 an application for stay of execution was filed by the appellants in the aforesaid Misc. Case. The trial Court however, rejected the application for stay ex parte. When the application for stay was rejected on 24th August, 1994 the plaintiff/respondent filed a petition praying for depositing the balance consideration money amounting to Rs. 52,000/- in Court. This petition was allowed. On 22nd November, 1994 a show-cause was issued by the Trial Court in Misc. Case No. 17 of 1994 (arising out of the application under Order 9 Rule 13 of the Civil Procedure Code) asking the defendants/appellants to show cause why the Misc. Case shall not be dismissed. Subsequently, on different dates, the evidence was taken and witnesses were examined. After examination of the witnesses and after hearing the learned counsel for the parties finally the Misc. Case was dismissed against which the present appeal has been preferred.
(3.) We have heard Mr. Roychoudhury for the appellants and Mr. Das for the respondent. After carefully going through the materials on record and after hearing the learned counsel for the parties, we are of the view that no interference is needed in respect of the impugned order in this appeal as we find that the Trial Court has rightly rejected the application under Order 9 Rule 13 of the Civil Procedure Code on consideration of the evidence already on record and on consideration of the conduct of the appellants. Reasons are as follows :;