JUDGMENT :

[Chandra Dhari Singh, J.]

I.A. 20920/2022 (Under Order IX Rule 13)

1. The instant application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter as “CPC”) has been filed on behalf of the applicant seeking setting aside ex-parte decree dated 11th November, 2022 passed by the predecessor of this Court in CS(OS) 1239/2008 and CS(OS) 1240/2008.

2. For the sake of convenience, the nomenclature of the parties will, hereinafter, be used as “applicant” for defendant and “non-applicant” for plaintiff.

3. The plaintiff/non-applicant filed the suit bearing no. CS(OS) 1239/2008 and CS(OS) 1240/2008 seeking recovery of Rs. 3,15,57,680/- (Rupees Three Crores Fifteen Lakhs Fifty Seven Thousand Six Hundred and Eighty Only) and Rs. 1,54,43,120/- (Rupees One Crores Fifty Four Lakhs Forty Three Thousand One Twenty Only) along with pendent lite and future interest.

4. The applicant had filed written statements in both the suits in response to the plaint. Since the aforesaid recovery suits were based on alleged identical transactions, the said suits were consolidated vide order dated 1st May, 2019 passed in the aforesaid suits.

5. Ms. Anusuya Salwan, learned counsel appearing on behalf of the applicant submitted that the applicant is aggrieved of the order dated 8th August, 2022 passed by learned Joint Registrar, order dated 26th September, 2022 and ex-parte decree dated 11th November, 2022 passed by the predecessor of this Court.

6. It is submitted that the applicant had engaged the services of Mr. Gaurav Sharma, Advocate for representing him in the present case as the applicant is a resident of Mumbai, Maharashtra.

7. It is submitted that on 31st January, 2018, the applicant had filed a consolidated evidence by way of affidavit on behalf of the applicant in affirmative of CS(OS) No. 1240/2008 and CS(OS) No. 1239/2008.

8. It is submitted that the applicant was informed by the erstwhile counsel engaged by the applicant that as per notification No. 418/RG/DHC/2020 dated 27th August, 2020 and No. 465/RG/DHC/2020 dated 30th September, 2020, the evidence was to be recorded only in ex-parte and uncontested matters and since the suit was a contested matter, the applicant was not required to appear till such notification was continued.

9. Ms. Salwan, learned counsel for the applicant also referred to the order dated 5th October, 2020 passed in CS(OS) No. 1239/2008 and submitted that the aforesaid observation is also recorded in the said order.

10. It is vehemently argued by learned counsel for the applicant that the applicant was diligently pursuing the matter and was awaiting instructions from the counsel in order to attend court proceedings for recording of evidence. However, no instructions/updates were given by the counsel of the applicant and therefore, the applicant could not appear before the Court.

11. Learned counsel for the applicant submitted that applicant as well as his wife suffered from Covid-19 during the month of March-April 2021. It is further submitted that the applicant is still suffering from Post Covid Symptoms. The applicant is also suffering from severe depression and severe back ache.

12. It is submitted that the applicant has been informed about the ex-parte judgment dated 11th November, 2022 by his relatives, and only then the applicant came to know that he has been proceeded ex-parte on the ground of non-appearance in earlier proceedings.

13. Learned counsel for the applicant referred several order sheets of this Court as well as Court of learned Joint Registrar. It is submitted that on 16th April, 2019, the applicant in CS(OS) 1240/2008 and DW-1 in CS(OS) 1239/2008 was present and recorded his examination-in-chief. It is submitted that the matter was next listed on 2nd August, 2019 for cross-examination of DW-1.

14. On 2nd August, 2019, learned counsel for the applicant was present and on the joint request, the case was fixed for 29th November, 2019. On 29th November, 2019