Pratibha Bonnerjea, J. - (1.) This is an application by the defendant No. 2 for stay of hearing of the suit, leave for filing the affidavit of documents, for an order, restoring the defence in the suit etc. The plaintiff had instituted the suit against the defendants Nos. 1 and 2 for recovery of Rs. 7,941.70, interests and costs. The suit was settled with the defendant No. 1. The defendant No. 2 filed its written statement denying the plaintiff's claims. On 29-3-77, the learned Master passed an order directing the plaintiff and the defendant No. 2 to file their respective affidavit of documents by 2-5-77. None of the parties complied with the said order. The plaintiff, thereafter, filed its affidavit of documents on 2-2-78. On 26th June 1978, the plaintiff took out an application before the learned Master for an order against the defendant No. 2 for filing its affidavit of documents and for striking out the defence in default. The notice of that application was duly received by the defendant No. 2. On 6-7-78, in presence of the said defendant's Advocate on Record the learned Master passed the following order:-- "Order made in terms of prayers (a), (b) end (c) of the summons save and except that the defendant No. 2 do file its affidavit of documents within a fortnight from date. Assessed Costs of Rs. 44/- to be paid to the plaintiff before filing the affidavit."
(2.) The prayer (c) of the petition referred to in the said order was as follows :-- "In default of filing the affidavit within the time allowed by this Hon'ble Court, the defence of the defendant No. 2 be struck out and the suit be placed in the list of undefended suit for hearing."
(3.) The defendant No. 2 did not file the affidavit of document in time end as such the defence was struck out and the suit was placed in the undefended list The defendant No. 2 thereafter took out the present application. In the petition it has been alleged that its Advocate on record duly communicated the order dated 6th July 1978 to the defendant No. 2 who by its letter dated 10-7-1978 informed the said Advocate on record that the petitioner did not want to disclose any document. The petitioner has a representative in Calcutta by the name of Sri Pannalal Dutta Roy. It was alleged in the petition that the Advocate on record informed this Calcutta representative on 13-7-78 that the affidavit of documents would be made ready and he would be informed about the same. The affidavit was in fact made ready on 11-8-78 long after the expiry of the time. All that the defendant No. 2 had to do was to intimate the plaintiff's Advocate on Record that no document would be disclosed and that should have been done before the expiry of time. But nothing was done, the default clause became operative on expiry of 28-7-78, the defence was struck off and the suit was transferred to the undefended list.;