Diligence and vigilance are essential in legal proceedings, and seeking mercy at the appellate stage without establishing a good ground does not advance the cause of justice.

JUDGMENT

Saurabh Banerjee, J. (Oral)--Appellants seek to impugn the order dated 05.12.2022 passed by the learned Trial Court [Hereinafter referred as "Impugned Order"] whereby their application under Order IX rule 13 of the Code of Civil Procedure, 1908 [Hereinafter referred as "CPC"] seeking setting aside of the ex-parte decree dated 22.12.2020 has been dismissed.

2. Brief facts disclose that in a suit for recovery of Rs.12,76,189/- (Twelve Lakhs Seventy Six Thousand One Hundred Eighty Nine Only) instituted by the respondent against the appellants before the learned Trial Court, after issuance of summons for 16.01.2019, appellants despite being served on 10.10.2018 (corrected by the learned Trial Court as it was incorrectly shown as 10.01.2018 when the suit was instituted subsequent thereto), failed to appear on the said date and entered appearance through their counsel only on 03.04.2019, albeit did not file their written statement. In view thereof, the appellant's right to file written statement was closed.

3. Thereafter, when the suit was listed on 31.07.2019, though the lawyers were on strike, the learned Trial Court proceeded to frame the issues and put it up for recording of respondent's ex-parte evidence. Thence, when it was listed on 27.11.2019, after duly examining the respondent's witness and closing the evidence, the learned Trial Court put it up for respondent's ex-parte final arguments. Then, though the suit was listed for 18.03.2020 and 13.10.2020, it was only after finally proceeding the appellants ex-parte on 16.12.2020 that the ex-parte decree dated 22.12.2020 was passed by the learned Trial Court.

4. In the meanwhile, appellants claim that though their counsel advised them to file a requisite application for seeking recall of order dated 03.04.2019 and though they sent all the requisite documents to him on 18.05.2019, no steps were taken by the said counsel. Appellants further claim to have come to know of the ex-parte decree dated 22.12.2020 only on 08.03.2021 and that too through the respondent and his counsel. Interestingly, not to ignore that is all that appellants have to say with respect to the period from 03.04.2019 and 08.03.2021.

5. Upon coming to know of the ex-parte decree dated 22.12.2020, in or around April 2021, the appellants filed an application under Order IX rule 13 of the CPC seeking setting aside of the said ex-parte decree, which as per appellants was filed within the statutory time period. It is the dismissal of this application by way of the impugned order of the learned Trial Court which has brought the appellants before this Court by way of this appeal.

6. Though the learned counsel for appellants has raised various grounds but has primarily argued that the appellants were under a bona fide belief that they were being duly represented through their erstwhile counsel (as they have a new counsel now) who was duly representing them on all dates, especially post 03.04.2019 and they cannot be made to suffer for the inactions of their erstwhile counsel. Relying upon A. Murugesan vs Jamuna Rani, (2019) 20 SCC 803; Nanda Dulal Pradhan & Anr. vs Dibakar Pradhan & Anr., 2022 SCC OnLine SC 822 and Rafiq & Anr. vs Munshilal & Lal & Anr., (1981) 2 SCC 788, learned counsel for appellants contended that the appellants ought not be made to suffer for any wrongs/inactions of their erstwhile counsel as they have a good case on merits and there is a lot at stake.

7. We have heard the learned counsel for appellants and also carefully perused the documents filed on record. Records reveal that the learned Trial Court passed all the orders in a very systematic manner over a period of time after first closing the rights of appellants to file their written statement and then proceeding them ex-parte and finally only after recording of respondent's evidence passing the ex-parte decree against the appellants. Records also reveal that the appellants were all throughout casual in proceeding with the pending