The judgment established that a party's absence and contesting the suit, coupled with pending proceedings and efforts to settle disputes, can constitute sufficient cause to recall an ex parte judgment under Order 9 Rule 13, CPC.

S. Ravindra Bhat, J.

1. This application under Order 9 Rule 13 seeks for recall and setting aside an ex parte judgment and decree, dated 23.05.2007. It is submitted that the applicant (defendant) had contested the suit by filing written statement as well as reply to the applications, which were pending consideration. The applicant states that in the meanwhile, this Court had issued warrant of arrest against him; the application for discharge of the warrant was rejected by the Court on 14.09.2006. The applicant further contends that an appeal by Special Leave Petition (SLP No.19526/2006) was preferred before the Supreme Court, which, by order dated 04.12.2006 issued notice to the plaintiff and stayed operation of the order rejecting the application for discharge of the warrant of arrest. The applicant further contends that the Special Leave Petition was later listed on 09.07.2007 when the Court heard it to enable it to apply for recall of the ex parte judgment.

2. It is contended that during the pendency of the suit – for infringement of the plaintiff’s registered trademark, the parties were negotiating with each other for settling the disputes in the case. A draft had been exchanged by the counsel for this purpose. It is further contended that the plaintiff had agreed to delete Clause 8 from the proposed settlement but it (the joint compromise application) could not be filed within the time, which eventually led to issuance of warrant of arrest against the defendant. That order was stayed by the Supreme Court.

3. The applicant states that the suit was listed on 17.01.2007 when the Court was informed that the counsel had no intention for using the word “Hilton”. The case was later listed on 19.02.2007 when the learned Judge was not holding the Court. The applicant contends that his counsel noted a wrong date.

4. It is submitted that the defendant’s counsel had actually appeared on 23.02.2007 but was not aware of the previous order setting down the applicant/defendant ex parte. Advertence is also made to defendant’s affidavit dated 18.04.2007, which was filed in Court stating that plaintiff’s trademark would not be used.

5. The applicant states that its counsel left for Kerala on 19.05.2007 because the Supreme Court had closed for summer vacation; on 23.05.2007 he became aware about the ex parte judgment and applied for a certified copy, which was made available on 17.07.2007. In these circumstances, defendant contends that it was not deliberately staying away from the proceedings. Reliance is placed upon the draft application under Order 23 Rule 3 stated to have been finalized and its affidavit stating that the defendant had changed the offending name from

“Hilton” to something else.

6. It is lastly submitted by the defendant/applicant that the ex-parte judgment has granted relief in excess of what was even claimed. Learned counsel states that as against the relief of Rs.5 lakhs damages claimed by the plaintiff, the Court granted Rs.23.59 lakhs in that regard and also decreed interest at 6% per annum.

7. The plaintiff relies upon averments made in the reply to the application and contends that at least on 11 dates of hearing i.e. 20.08.2004, 20.07.2005, 29.07.2005, 10.08.2005, 28.09.2005, 01.12.2005, 23.01.2006, 24.05.2006, 20.07.2006, 11.09.2006 and 11.01.2007, the defendants were unrepresented. It is also submitted that there was a conscious pattern of negligence by the defendant to diligently prosecute their case even though they were fully aware of the previous orders of the Court, particularly in regard to issuance of warrant of arrest. It is submitted that this Court was made aware of these facts and indeed took them into consideration in Para 6 of its ex parte judgment dated 23.05.2007.

8. It is submitted by the defendants that this Court cannot go into the merits of the judgment sought to be recalled and that in any event the evidence placed on record – both oral and documentary, establish the claim for Rs.23.59