- (1.) Though no ground exists for condoning the lack of representation on the part of the appellant on July 3, 2019, such order is recalled so that the matter can be addressed on merits.
(2.) The appeal is directed against an order dated December 3, 2018 by which the appellant's application to recall an ex parte decree was rejected by the trial court. Even in applying under Order IX Rule 13 of the Code, there was a delay of 650 days.
(3.) The trial court found that there was no plausible explanation for such delay except that the applying defendant may have taken it for granted that time would be afforded to it. Indeed, some of the excuses proffered in the application were found to be outright false. It was urged that some advocate was indisposed for sometime and could not attend the Court, but the trial court records that contemporaneous orders established the presence of such advocate in Court and, as such, the fundamental basis of the application for recalling the ex parte decree was flawed and faulty. The suit was filed in 2014 and the writ of summons was issued on March 24, 2014. The writ of summons was admittedly received by the appellant by April 2, 2014 and on May 16, 2014, advocate entered appearance on behalf of the second defendant appellant. Since no written statement was filed, the plaintiff obtained a certificate of non-filing of written statement by June 17, 2014 which entitled the plaintiff to proceed ex parte. On behalf of the appellant, it was contended before the trial court that negotiations had been initiated between the parties for the resolution of the disputes and the appellant was given to understand by the plaintiff that the plaintiff would not take further steps in the suit till the negotiations were concluded. However, no evidence of any negotiations was furnished in course of the Order IX Rule 13 proceedings before the trial court nor could the appellant herein establish that any assurance was given on behalf of the plaintiff that the suit would not be proceeded with. Indeed, the very fact that the appellant applied some 650 days after the suit was decreed speaks volume for the complete lack of diligence on the appellant's part. Equally, it cannot be accepted that settlement talks continued for such a long time without even a scrap of paper to suggest that there were any negotiations at all. ;