Acceptable reasons for non-appearance can lead to setting aside of ex-parte decree. Trial courts should ensure fair trial and timely disposal of cases.

Challenging the fair and final order passed in I.A.No.76 of 2015 in O.S.No.9933 of 2010 on the file of XVIII Additional City Civil Court, Chennai, the 3rd defendant has filed the above appeal.

2. The plaintiff filed the suit in O.S.No.9933 of 2010 for the following reliefs:-

(i) for declaration that the construction put up by the 3rd defendant at No.8, Musuri Subramaniyam Salai [Oliver Road], Mylapore, Chennai - 600 004 is an illegal, unauthorised construction, without any proper sanctioned plan and in gross violations;

(ii) for declaration that the plaintiff is entitled for a right of easement to get free flow of air, light from the eastern side and privacy to the plaintiff's family and to enjoy their easement rights undisturbed including encroachment to the entire length of the plaintiff's property; and

(iii) for a consequential mandatory injunction.

3. The suit was filed by the plaintiff as early as on 08.12.2008. The defendants filed their written statement and were contesting the suit.

4. The Trial Court posted the suit for trial and the plaintiff had also filed his proof affidavit. At that stage, since the 3rd defendant failed to appear before the Trial Court, the Trial Court set him ex-parte and an ex-parte decree was passed on 13.03.2015. Thereafter, the 3rd defendant filed an application in I.A.No.76 of 2015 on 10.04.2015 to set aside the ex-parte decree dated 13.03.2015.

5. In the affidavit filed in support of the application in I.A.No.76 of 2015, the counsel for the 3rd defendant has stated that earlier the suit was dismissed for default on 26.04.2013 and the plaintiff has filed an application in I.A.No.108 of 2013 and subsequently, the said application was also dismissed for default on 03.01.2014. Thereafter, the plaintiff filed an application in I.A.No.36 of 2014 to set aside the order dated 03.01.2014 and to restore the application in I.A.No.108 of 2013. Thereafter, on 24.07.2014, the application in I.A.No.36 of 2014 was allowed and consequently, the application in I.A.No.108 of 2013 was restored to file. Subsequently, on 22.08.2014, the application in I.A.No.108 of 2013 was allowed and the suit was restored to file.

6. According to the 3rd defendant, again, the suit was dismissed for default on 08.10.2014 and an application was filed by the plaintiff in I.A.No.170 of 2014 to restore the suit was allowed by the Trial Court. Thereafter, when the suit was posted on 13.03.2015, since the 3rd defendant failed to appear before the Trial Court, he was set ex-parte and an ex-parte decree was passed. In paragraph No.5 of the affidavit filed in support of the application, the counsel for the 3rd defendant has stated that his marriage was fixed and an engagement function was pursued, therefore, he could not attend his office during that time and inadvertently, failed to inform his office about the restoration application filed by the plaintiff. Thereafter, when one of his colleague went to the court to check the 'A' Diary, he came to know about the ex-parte decree passed on 13.03.2015.

7. The plaintiff filed his counter disputing the averments stated in the affidavit filed in support of he application and prayed for dismissal of the application.

8. The Trial Court, taking into consideration the case of both the parties, dismissed the application stating that the 3rd defendant has not filed an affidavit for setting aside the ex-parte decree and only the Junior Advocate has sworn to the affidavit. In paragraph No.16 of the order, the Trial Court has observed that even in the sworn affidavit filed by the Junior Advocate, he has stated that the bundle got mixed up with other case records, therefore, the said reason cannot be accepted.

9. On a perusal of the affidavit filed in support of the application, it could be seen that nowhere the learned counsel has not stated that the bundle got mixed up with other case bundle. He stated that he was busy with his marriage, therefore, inadvertently, failed to inform his office about the