1 S.B.CIVIL MISC. APPEAL NO.5399/2008. Madan Lal Rawat & Anr. VS. Kishan Lal Agarwal. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.5399/2008. Madan Lal Rawat and Another. VERSUS Kishan Lal Agarwal. 06.05.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.P.C.Shah, for the appellants. Mr.M.C.Gupta, for the respondent. ***** Heard learned counsel for the parties. This misc. appeal has been preferred against the impugned order dated 17.11.2008 by which the application submitted by the defendant-appellant under Order 9 Rule 13 C.P.C. for setting aside the ex- parte decree dated 23.09.2008 has been dismissed. The suit is one for recovery of money. It is not in dispute that the defendant-appellant was served with the summons and in response to which the written statement was also filed. The next date fixed was 16.09.2008, for evidence of the plaintiff. On the said date, the plaintiff Kishan Lal appeared in the witness box and filed his affidavit but the counsel for the defendant did not appear either to take the copy of the affidavit or to cross examine the plaintiff Kishan Lal as PW-1. The learned trial court after recording the aforesaid fact adjourned the case after lunch to allow an opportunity to the defendant/his counsel to come 2 S.B.CIVIL MISC. APPEAL NO.5399/2008. Madan Lal Rawat & Anr. VS. Kishan Lal Agarwal. and take the affidavit and cross examine the plaintiff. The learned trial court recorded in the order after lunch that despite waiting for some time, none appeared on behalf of the defendant to either take the copy of the affidavit or to cross examine PW-1. Having done so, the learned trial court proceed against the defendant and adjourned the case for evidence of the defendant to 23.09.2008. On 23.09.2008 also none appeared on behalf of the defendant and accordingly, the learned trial court passed the decree in favour of the plaintiff. Thereafter, the defendant-appellant filed an application on 21.10.2008 for setting aside the ex- parte decree dated 23.09.2008. It is this application which has been dismissed by the learned trial court by the impugned order. The contention of the learned counsel for the appellant is that on 16.09.2008, the counsel for the defendant was busy in another court and, therefore, he could not appear before the court on 16.09.2008 when the case was called. He submits that the defendant's counsel appeared in the later part of the day and came to know from the Reader that the case has been adjourned for 25.09.2008. As per the case of the defendant, counsel for the defendant noted the date in his diary as 25.09.2008, as such, he could not appear on 23.09.2008. Learned counsel for the respondent, on the other hand, has supported the judgment passed by the 3 S.B.CIVIL MISC. APPEAL NO.5399/2008. Madan Lal Rawat & Anr. VS. Kishan Lal Agarwal. learned trial court and has contended that the fact that the counsel for the defendant noted the next date as 25.09.2008 is not corroborated from the fact that no application for setting aside the ex-parte decree was filed till 21.10.2008 as in the normal course on 25.09.2008, the defendant would have come to know about the passing of the ex-parte decree on 23.09.2008 and it was expected from the defendant or his counsel to move the application for setting aside the ex-parte decree immediately or soon thereafter but the defendant waited for sufficiently long perid of time for moving an application under Order 9 Rule 13 C.P.C. and was only wanting to delay the matter on some pretext or the other. Without going into the merits of the aforesaid contentions, I am of the view that the interest of justice would be served in case an opportunity is afforded to the defendant to participate in the proceedings and cross examine the plaintiff on his affidavit filed on 16.09.2008 on being put to terms. It is, therefore, ordered that in case the defendant deposits 50% of the decreetal amount before the learned trial court and submits a solvent security for the balance amount to the satisfaction of the learned trial court within a period of eight weeks from today the decree shall stand set aside. The parties are directed to appear before the learned trial court on 03.08.2009. No fresh summons would be issued to the parties in this behalf by the learned trial court. It is further directed that in case the defendant complies 4 S.B.CIVIL MISC. APPEAL NO.5399/2008. Madan Lal Rawat & Anr. VS. Kishan Lal Agarwal. with the aforesaid condition, the plaintiff Kishan Lal would appear before the learned trial court on the date fixed for the purpose of cross examination. The plaintiff would be entitled to lead such further evidence as the plaintiff may think proper in the facts and circumstances of the case. The copy of the affidavit filed by the plaintiff Kishan Lal as PW-1 has been furnished to the learned counsel for the defendant-appellant. It is made clear that in case the condition is not complied with this order shall stand revoked after eight weeks and the plaintiff shall be entitled to execute the decree dated 23.09.2008. Subject to the aforesaid, the appeal as well as the stay application stand disposed of. (DALIP SINGH),J. Solanki DS, Jr.P.A.