SOUMEN SEN,RAVI KRISHAN KAPUR, J - (1.) The Court : This appeal is directed against an ex parte decree dated 20th April, 2015 passed in CS No.215 of 2002. At the time of admission of the appeal, the appellant was directed to secure the entire decretal dues. The decretal dues are now secured. Of the various grounds taken in the Memorandum of Appeal, the principal point argued on behalf of the appellant is that there has been a violation of the principle of natural justice. It is submitted that the learned Single Judge had once dismissed the suit due to the inability of the learned counsel representing the plaintiff to proceed with the suit, and after having restored the suit, an opportunity should have been given to the defendant to cross examine of the plaintiff's witness and to lead evidence, which was denied by the learned Single Judge in the order dismissing the suit for inability on the part of the counsel for the plaintiff to proceed with the suit. The learned counsel has not addressed us on the merits of the decree.
(2.) The prayer for setting aside of the decree is opposed by the plaintiff. Mr. S.P. Sarkar, learned senior counsel appearing on behalf of the plaintiff has submitted that the suit was filed in the year 2002, and in 2015 the decree was passed. The defendant was negligent in conducting the suit. The order for restoration of the suit was upon notice to the defendant. The bank had due notice that the suit was restored. Even thereafter the defendant did not take any steps to appear at the hearing of the suit. The injured innocence as sought to be portrayed by the appellant is misplaced and no indulgence should be shown to the appellant. Mr. Sarkar has also relied upon three decisions, namely, (i) Laxmibai vs. Keshrimal Jain reported at 1995 M.P.L.J 105 (ii) Bhanu Kumar Jain vs. Archana Kumar and Another reported at (2005) 1 Supreme Court Cases 787 and (iii) Neerja Realtors Private Limited vs. Janglu (Dead) Through Legal Representative reported at (2018) 2 Supreme Court Cases 649, for the proposition that once the plaintiff has decided to prefer an appeal against the ex parte decree, the appellant has to substantiate that the decree is liable to be set aside not on the grounds available under Order 9 Rule 13 of the Code of Civil Procedure but on merits.
(3.) We have heard the parties at length. We have perused the grounds of appeal. The ground nos.I and II appeal to us. The said grounds are: "I. For that the Hon'ble Trial Court has fallen in serious error in holding that the defendant (Appellant) did not contest the suit in spite of notice by the plaintiff inasmuch the Hon'ble Trial Court has failed to appreciate that the order dated March 27, 2015 whereby the suit was restored to file reveals that the learned Advocate who had been engaged by the Appellant Bank had retired from the matter prior to the date of restoration meaning thereby that there was no representation of the Appellant before the Hon'ble Court on that day and no communication/notice as to the restoration of the suit was ever given to the defendant/appellant. II. For that the Hon'ble Trial Court has fallen to appreciate that when on the day on which the suit was restored to file, there was virtually no representation on behalf of the Appellant Bank, in view of the fact that the learned advocate engaged by the Appellant Bank informed the Hon'ble Court that he had retired from the matter and the Hon'ble Court permitted him to retire, it became incumbent upon the Hon'ble Trial Court to issue notice upon the defendant/appellant informing it about the restoration of the suit." ;