When a defendant appears after an ex parte order, it has the right to participate in the proceedings, including cross-examining the plaintiff's witnesses and leading its evidence.

( 1 ) BEFORE we take note of the controversy involved in this appeal and address the same, it would be appropriate to have stock of the factual background in which the said controversy has arisen.

( 2 ) THE appellant (hereinafter referred to as 'the plaintiff) has filed suit CS (OS) No. 2347/2000 on the Original Side of this Court for perpetual injunction, infringement of trademark and trade-name, copyright, passing off, rendition of accounts, etc. against the respondent who is the defendant in the said suit (hereinafter referred to as 'the defendant' ). The plaintiff is stated to be the owner of trademark FINOLEX and is aggrieved by the user of trademark FINOLUX, mark adopted by the defendant. Along with the main suit, the appellant also filed I. A. No. 10903/2000 in which the appellant was granted ex-parte ad interim injunction. After receiving the summons, the defendant entered appearance and contested the suit by filing written statement and reply. The case was thereafter adjourned on several occasions in order to enable the parties to arrive at a compromise. However, no compromise could be arrived at. When the matter came up for hearing on 21-3-2003, there was no appearance on behalf of the defendant. The learned Single Judge ordered that the defendant be proceeded ex parte. The plaintiff was allowed to lead evidence by way of affidavit. In the application for interim injunction, i. e. I. A. No. 10903/2000, interim order was also confirmed. Exact order which was passed on that date is as under :-

"suit No. 2347/00 there is no appearance on behalf of the defendant who is set ex parte. Evidence be led by way of affidavit which should be filed within four weeks from today. Renotify the matter before the Joint Registrar for exhibition of documents on 7-5-2003. IA No. 10903/2000 interim Order stands confirmed. I. A. stands disposed off. "

( 3 ) ON 7-5-2003, when the matter was listed before the Joint Registrar, counsel for the defendant appeared and was apprised that it was proceeded ex parte. Since the plaintiff had not filed its evidence by way of affidavit, further two weeks period for this purpose was granted, subject to the payment of costs of Rs. 500/- and the matter was adjourned to 22-9-2003. The defendant, in these circumstances, filed the application under O. IX, R 7 of the Code of Civil Procedure, 1908 (for short, 'cpc') for about:blank 21-04-2009 setting aside the ex parte order passed against it on 21-3-2003. This application was filed on 28-3-2003. The learned Single Judge did not find any sufficient cause disclosed by the defendant in the said application and, therefore, vide order dated 9-8-2004, this application was dismissed. It was, however, clarified that the defendant is not precluded from joining the proceedings but it cannot expect the clock to be set back'. It may also be mentioned that the plaintiff had not filed its evidence or the original documents till then. After the passing of order dated 9-8-2004, the matter was listed before the Joint Registrar on 25-11-2004, as directed. On that date, the plaintiff sought further time to file its evidence by way of affidavit and two weeks time was given as a last opportunity. Still, affidavit was not filed and on 8-2-2005, further time to four weeks was granted and the matter was adjourned by the Joint Registrar for 9-5-2005. The affidavit was now filed after the aforesaid order, but the deponent did not appear on 9-5-2005 and, therefore, the matter had to be adjourned again for putting exhibits on the documents.

( 4 ) WHILE these proceedings were pending, the defendant filed appeal against the order dated 9-8-2004 along with application for condonation of delay in preferring the appeal as there was a delay of 224 days in filing the said appeal. The application for condonation of delay was dismissed by the division Bench vide order dated 5-7-2006 (reported as 2006 (33) PTC 474 (Del) (DB) ). As a consequence, the appeal was also dismissed and