SARKAR,J. - (1.) THE judgment which I am going to deliver covers two applications. The facts out of which the applications arise are somewhat complicated and may be summarised as follows:
(2.) IN August 1949 this suit was filed for the recovery of Rs. 66961 -11 -0 for balance of principal and interest due for advance payments on account of price of goods and for price of goods supplied to the deft. The defence is that on the adjustment of the accounts between the parties Rs. 63677 -4 -3 would be due to the deft. and in fact nothing would be payable by it to the plff. The claim itself would indicate that there was an account between the parties. The defence was filed sometime in November 1949. As this suit is a commercial suit, under the rules of this Court the deft, should have filed its affidavit of documents within a fortnight of the filing of its written statement without any further order of this Court. This fortnight expired before 14 -12 -1949 but the affidavit was not filed. On 8 -6 -1950 the plff. took out a summons returnable before the Master, for an order that the deft, be directed to file its affidavit of documents within two days and that in default thereof the defence be struck out. The summons was served on the deft's attorney but the attorney it is alleged could not contest the application as he was unable to get in touch with his client. In these circumstances, an ex parte order as prayed was made on 12 -12 -1950, by the learned Master. The order not being complied with the defence stood struck out on 15 -6 -1950. The deft, says that it did not comply with the order as it was not aware of it till 8 -7 -1950. The suit appeared for hearing as an undefended suit on 11 -7 -1950 and on that day the deft, moved the Court for an order that the suit be removed from the list of undefended suits and leave be given to the deft. to defend the suit and to file its affidavit of documents within such time as the Court thought fit. The suit was then adjourned. The application was heard on 24 -7 -1950 when it was allowed to be withdrawn for reasons to be hereinafter mentioned, and the deft, intimated that it would prefer an appeal from the order of the Master of June 12. The deft, was directed to pay the costs of the application as a condition precedent to preferring the appeal and the costs were duly paid. The suit was again adjourned. On July 28 the deft, took out another summons returnable before, the Master for the following order: (a) The order of June 12, be revised, recalled or set aside, (b) Two days time be given to the deft, to file its affidavit documents, (c) The suit be removed from the list of undefended suits and an opportunity to defend be given, (d) Alternatively the summons may be endorsed for the purpose of appeal to the Judge and time for the purpose be enlarged; On August 5, the learned Master refused this application and delivered a considered judgment. Thereafter on August 7th and 9th the deft's solicitor issued notices of two applications and these are the applications now for hearing. The suit still stands adjourned.
(3.) THE application pursuant, to the notice of August 7, is by way of an appeal from the order of the learned Master of August 5 and it asks for the following reliefs: (a) The order made by the learned Master on June 12, be revised, recalled or set aside, (b) Two days time be given to the deft, to file its affidavit of documents, (c) The suit be removed from the undefended list and leave to defend be given. (d) The delay in making the application be condoned, (e) In case the above prayers be not allowed, the summons may be endorsed for appeal to the Judge.;